Demetrius Hill v. C.O. Crum

unreliable screen out can a model be insufficient.10 will affidavits

VI. reasons, va- we will foregoing

For certifying order Court’s

cate the District remand for further action and

the class opinion. consistent with

proceedings after the Marcus decided

Because class, Carrera certification

court’s further, limit- allowed to conduct

should be of ascertainabili- discovery on the issue

ed opportunity another

ty and afforded ascertainability requirement.

satisfy the HILL, Plaintiff-Appellee,

Demetrius Defendant-Appellant, CRUM,

C.O. Warden; Strickland,

Terry O’Brien, Mr. Warden; Wilson, Cap Mr.

Associate Counselor; Pulivar,

tain; Stiger; Lt. Mullins; Hall, Ms. Case

Counselor Allred; Meade; Dr.

Manager; Nurse Administrator; Roff, C.O.

Dr. Health Martin, Taylor; Taylor;

T. C.O. C.O.

Defendants.

No. 12-6705. Appeals, Court of

United States

Fourth Circuit.

Argued: March 2013. Aug.

Decided: 2013. Florida, claim is an individual's whether Bayer argues that because the statute also claims, not an the class limitations is will bar some the statute of of limitations barred the class is ascertainability cannot Because this case. aspect be ascertained. WeightSmart in purchasers of defined as all Locke, O’Keeffe, IV, Gentry, J.

James Moore, Roanoke, Virginia, for & Rakes Sokolowski, Arlene Sokolowski Appellant. Ohio, Office, Ap- Royalton, North Law pellee. NIEMEYER, AGEE, and

Before THACKER, Judges. Circuit AGEE, Judge: Circuit (“Hill”) Hill sued Plaintiff Demetrius William Crum Correctional Officer (“Crum”) pursuant to Bivens v. Six Un Agents Federal Bureau known Named Narcotics, (1971), alleging that Crum 29 L.Ed.2d 619 force him in viola- used excessive rights. Amendment tion of Hill’s im- Claiming he was entitled appeals the district court’s munity, Crum 50(b) judg- Rule motion for denial For the reasons ment as a matter of law. follow, court’s we reverse the district denying judg- motion for order Crum’s law, with ment as a matter of and remand in favor of judgment instructions to enter Crum. Background

I. Factual appeal, At all times relevant to this Penitentia Hill was an inmate the U .S. Lee”) (“USP Jonesville, Virginia. ry Lee Logan Hill a cell with Delmont shared (“Meade”), Logan Theresa Meade (“Logan”).1 registered On November nurse, Hill cell, examined after he was moved in their which sprinkler broke a fire to the cell. Meade found that Hill Hill Logan the cell to flood. caused (J.A. injuries,” 192), had and docu- “[h]o to hand restraints order be submitted mented her in a contempora- assessment damage cell so the could moved to new report, Injury neous “Inmate Assessment by first repaired. Logan escorted (J.A. 201). and Follow-up,” Meade testi- cell, a correctional officer to different fied that while her examination focused on cell which left Crum alone the flooded ambulatory caused re- with Hill. straints, it would have included notes re- removed, Logan After Crum shoved dizziness, garding feelings Hill’s of pain, him required legal Hill and to leave his inability to stand or understand had she prov- material in the flooded cell. Without any noticed if problems, he had com- ocation, Hill, punch- then Crum assaulted plained any injuries. Hill’s medical rec- ribs, in ing him the abdomen and and ords did not any complaints indicate elbowing During the side of his head. injuries resulting his alleged assault assault, Hill, shouted at “break an- Crum by Crum. sprinkler, your I’ll other break neck.” April On brought pro Hill se (J.A. 219). The assault lasted about two in Bivens suit the United States District minutes Crum moved Hill to a before hold- Virginia Court for the Western District of cell, ing knocking against gate head his against eleven prison USP Lee officials way out. Hill kept on the The staff alleging deprivations rights. various of his in ambulatory restraints for seventeen complaint Hill’s did not name Crum as a following alleged hours the assault.2 Hill any injuries defendant -or arising claim out assault, that as a result of Crum’s he suf- assault; however, of the November rib, dizziness, temporary fered a bruised complain length he did of time about the (J.A. “vicious, vicious and headache.” during subjected which he was to ambula- 223). 150-51, tory day. April restraints On 2008, Hill, se, proceeding pro still amended assault, prison About an hour after the pleading separate his to include exces- officials recorded two videos of Hill against sive force claim Crum based on the Logan depict in new cell. The their videos alleged assault in the flooded cell on No- standing Hill in his cell. he does While 1, 2007.4 vember distress, not seem to be visible he al- leged eye, although Initially, sponte he had a swollen the district court sua not force claim apparent the videos.3 dismissed Hill’s excessive disputes 1. Crum Hill’s version of events. 3. The video does not show the assault However, because district court denied and'begins running than an after more hour ‘ 50(b) judgment Crum's Rule motion for as a the assault Hill stands for much of occurred. law, matter of review facts appear pain. the video and does not to be in Hill, most favorable the non-movant. Farms, Inc., Evans Konkel v. Bob 165 F.3d plaintiffs brought Although-Hill other 1999). (4th Cir. multiple against multiple claims defendants court, the district Hill’s excessive force claim warden, captain 2. The and the not Officer against pertinent Crum is the claim Crum, long decide how an inmate remains in appeal. ambulatory restraints. Hill does not contend ambulatory part restraint confinement against of his cause of action Crum. claim, liability, again denied complaint, to state a Hill’s failure Crum for 1915A(b)(l).5. summary judgment based on § moved for 28 U.S.C. pursuant to again so, immunity, relied on Norman which de- qualified the court doing (4th Cir.1994) (en that it on the same rationale nied based Taylor, held, most ex banc),6- credibly “absent the be claimed that Defen- which “cannot circumstances, can that unnecessari- traordinary not on notice dants were ex Amendment prevail inflicting pain on on the Plaintiff violated ly 136). (J.A. if is de claim his cessive force Hill rights.” constitutional :Finding that at 1263. minimis.” proceeded and the case obtained counsel assault allege that Crum’s Hill did not by jury. trial inju a de minimis more than had caused trial, Fed- pursuant At Crum moved his claim. dismissed ry, the district court 50(b) judg- eral Rule of Civil Procedure counsel, Hill, appealed. without still as a matter of law at the close ment pending appeal on Hill’s case was While again Hill’s at the close of all the case Court, Supreme Court decided to this evidence, immuni- on the basis of 34, 130 S.Ct. Gaddy, v. Wilkins mo- ty. The district court denied both (2010), 995 that 175 L.Ed.2d tions, a in jury and the returned verdict injury threshold no de minimis there is favor, finding Hill’s Crum liable and claim, specifically force for an excessive (J.A. 207). $25,000 awarding damages. approach in rejecting the Fourth Circuit’s trial, a trial After Crum moved for new Wilkins, light In of this Court Norman. 59(a) again judgment Rule for under dismissal of vacated the district court’s 50(b) a matter of law under Rule on the and remanded force claims Hill’s excessive qualified immunity, arguing of that ground to the court. See Hill v. the case district clearly a his conduct did not violate estab- (4th Cir.2010) O’Brien, Fed.Appx. 396 right under Norman lished constitutional (J.A. 86-87). (unpublished); the of time the assault. remand, motions to dis- On Crdm filed granted The district court Crum’s summary judgment on sever- miss and for issues, stating for a trial on all motion new grounds, including al that he was entitled “$25,000 compensatory damages for The district' court that qualified immunity. to a and an head quali- impermanent that was not entitled to bruised rib ruled Crum simply a of fact could ache shocks the conscience of the immunity fied because trier miscarriage justice It Eighth Amendment Court. is a of conclude that Hill’s (J.A. 233). cannot stand.”7 rights had been violated. Crum answered sustained, 1915A(b)(l) the a district court motion for new trial has been 5. Section directs identify though they and dismiss a civil filed issues stand as had never been action malicious, "frivolous, or fails prisoner that is cause is to be tried de novo. The The tried. case, may upon a claim which relief be including state whole the issues of fact at the granted.” trial, open hearing and determi- former nation.”) (quoting § 66 C.J.S. New Trial Gaddy, Abrogated by U.S. Wilkins v. omitted). (2011) (footnotes (2010). 175 L.Ed.2d Despite that the court set the fact district trial, the verdict and a new aside ordered cross-appeal did of the district 7. Hill not file a jury "[t]he Hill's counsel stated on brief that grant motion for a new court’s of Crum's minimis,” were not de found that consequence, we treat that trial. As a must (Br. 18), (United Appellee jury "a has al- of nullity. ex rel. trial as See States Inc., ready that Defendant Crum used Tuomey Sys., determined Healthcare Drakeford (4th Cir.2012) ("Where repugnant of force that was 405 n. 18 amount motion, the new trial the extent Crum claims his con Although granting clearly motion for duct did not violate established district court denied Crum’s law. Bass, of law on the issue judgment as a matter See Winfield (4th Cir.1997) (en banc) (“[W]e immunity, stating that again juris have credibly cannot apparent diction over a claim that there “[i]t —and officer in Crum’s clearly denied-that reasonable accept violation of established law have known that position 2007 would ing the facts as the district court viewed them.”). punching prisoner a restrained repeatedly Because district court’s re ribs, stomach, in the and head for sus- jection qualified immunity of Crum’s de but to period, law, tained for no other reason question turns on a it is fense issue, was punish Valladares, him for a behavioral subject to immediate appeal. law.” pre-existing unlawful 552 F.3d at 387-88.

(J.A. 225). rulings, with its earlier As authority court cited no for its

district Legal II. Background appealed the denial timely decision. Crum The Court has extended 50(b) of his Rule motion.8 application Eighth Amendment’s § 28 U.S.C. 1291 affords this prohibition against “cruel and unusual jurisdiction over final orders of the Court punishments” prison to the treatment of 1291,- § Pursuant district court. context, by prison ers officials. jurisdiction appeal to hear Court has Court has stated that the Amend defense, immunity a qualified the denial of unnecessary ment forbids “the and wanton order, a final if the denial before there is Albers, pain.” Whitley infliction of v. 475 v. legal on a issue. Valladares rests 312, 319, U.S. 106 89 L.Ed.2d S.Ct. (4th Cordero, 387-88 Cir. (1986) (quoting Ingraham Wright, 251 v. 2009). If, however, presents an appeal the 651, 97 430 U.S. S.Ct. 51 L.Ed.2d 711 insufficiency of the of the evidence to issue (1977)). prison maliciously officials “When fact, genuine a issue of material this raise harm, sadistically use force to cause jurisdiction have under Court does not decency always contemporary standards of Bailey, § to consider such a claim. v. 1291 McMillian, are violated.” Hudson 503 (4th Cir.2003); 738 Kennedy, 349 F.3d 112 L.Ed.2d 156 U.S. S.Ct. Jones, 304, 319-20, see Johnson v. (1992) (quoting Whitley, 475 U.S. at (1995) 132 L.Ed.2d 238 1078). “This is true whether or S.Ct. (“[A] defendant, quali to invoke a entitled injury not is evident. Other significant defense, immunity may appeal not a fied wise, Eighth permit Amendment would summary judgment court’s order district punishment, no matter how physical as that order determines whether insofar inhuman, than inflicting or less diabolic pre-trial not the record sets forth a injury.” at arbitrary quantity of Id. some trial.”). ‘genuine’ issue of fact for We do 9,112 995. S.Ct. jurisdiction appeal this possess to consider further stated qualified immunity the denial of The Hudson Court claims, however, conscience,” 18-19). (Br. any findings were made Appellee that their at special grant jury by jury by a verdict on of a new The did not return are now void sup- point, and we have identified no either trial. port the record for counsel’s statements stayed pro- court has further regarding jury’s "findings.” 8. The district Notwith- ceedings pending appeal. standing veracity of the dubious counsel’s Dorton, (4th Riley In 115 F.3d 1159 say every that malevolent is not to [t]hat Cir.1997), guard gives continuing rise to a we observed the va by touch Norman Eighth lidity holding, extending of action. The federal cause Riley, of cruel and prohibition holding pre-trial Amendment’s that detainees. necessarily detainee, ex- punishments alleged unusual that the defen- pre-trial de recognition from constitutional him cludes dant used excessive force (cid:127) force, minimis uses physical provided awaiting while he was handcuffed and the use of force is sort booking police at the station. 115 F.3d at of mankind. .repugnant to the conscience Specifically, Riley alleged that the pen tip defendant inserted the (citations 9-10, 112 Id. quarter Riley’s of an inch into nose and omitted). Referencing quotation marks Id. He rip open. threatened to his nose basis, in Hudson as its this statement slapped further that the defendant Fourth Circuit Norman focused on the him in the face with “medium” force. injury than plaintiffs extent of the rather determining con- the defendant’s the nature of the defendant’s force as the actionable, applied duct was not threshold a must cross to state plaintiff in Norman that “a plaintiff cannot claim.9 The Norman Eighth Amendment prevail Eighth on an Amendment exces- court reasoned that “Hudson does not sug- is de minim- injury sive force claim if his hold, that the extent of gest, much less ” to Fourteenth Amendment excessive injury is irrelevant whether excessive detainees.- Id. pre-trial force claims of employed force has been and therefore Norman, 1263). (quoting F.3d be, that an force claim cannot excessive injury We thus reiterated need not “[a]n plaintiffs defeated evidence that permanent be severe or to be actionable Norman, de minimis.” Amendment, under the but it must held Norman at 1262-63. We be more than de minimis. We think this extraordinary circum- “absent most applies same rule to excessive force claims stances, prevail cannot on an Id. at brought by pre-trial detainees.” Eighth Amendment excessive force claim (citation omitted). is de minimis.” Id. at 1263. injury if his (4th Taylor McDuffie, v. 155 F.3d 479 Following the Norman decision, until Cir.1998), detainee, pre-trial Taylor, in Court in Wil- abrogated by irons,” id. leg “handcuffs and at al- kins in the Fourth Circuit consistent- leged that officers shoved small wooden ly prevail held that a could not on plaintiff object into his nose with such force that it claim, an excessive force “absent the most hemorrhage, caused a nose circumstances,” shoved the extraordinary if he had mouth, object same wooden into his which not suffered more than de minimis injury. tooth, in cracked his hit him the back of “Extraordinary circumstances” were de- head, punched him in the his and ribs. fined as those situations in which the force Norman Applying 155 F.3d at 481. “repugnant used is to the conscience of Riley, mankind,” summary judgment we affirmed pain signif- or the suffered is so constitutes more than de min- plaintiff icant that it defendants on the basis that suf- imis Id. de minimis Id. at 484. injury. only injury. n. 4. fered inmate, Norman, keys causing 9. The that the defen- cell his hand to Nor- swell[].” swung keys man, (brackets "caught omitted). dant his at him his 1260-61 hand, right hitting him on his thumb with the (4th 139255, at *3 Taylor, Cir. Feb. in 2000 WL dissented Murnaghan Judge curiam) (sum- 2000) (unpublished) (per under the Court’s contending that Norman, are free in our circuit “officers in favor of defendants was mary judgment force unjustified excessive to use only alleged inju- proper plaintiffs where inmates, care- long they are so headache, de min- ry, clearly a severe was mi- to leave enough ful or fortunate Dehay, v. ); 94-7114, imis Williams Nos. 155 F.3d at their blows.” nor traces of (4th 94-7115, 1996 WL *3 Cir. J., This was dissenting). (Murnaghan, curiam) 21,1996) (unpublished) (per March “unacceptable results achieved one of back (affirming plaintiffs “[tjransitory injury is of finding when and shoulder aches of limited duration” the excessive dispositive., of considered the defendant were de minim- -by caused J., inquiry.” Id. at 486 (Murnaghan, force ).10 Judge Murnaghan’s dissenting). Despite Taylor remained objections, Norman correctly observes that The dissent law -inthe Fourth Circuit. the settled Stanley involved the use of force that justified by prison secu- arguably at least Norman, Riley, with Consistent Stanley, post interest. See n. rity at 328 Taylor, we have consistently applied the however, myriad other cases from like prevail cannot on an that a rule line, in the Norman were de this Circuit decided if force claim his excessive See, Hejirika, e.g., Stanley minimis. proper inquiry, pre- recognized Cir.1998) (re- (4th Wilkins, 634-36 “whether the of which finding as a the district court and versing complains significant plaintiff] [the bruising, 'plaintiff’s law that matter of context, enough, when viewed its factual were de and a loosened tooth swelling, right to be to amount to violation his Young, Hines v. minimis); Fed.Appx. punishment[.]” from cruel and unusual free (4th Cir.2005) (unpublished) (per added). Stanley, 134 F.3d at 636 (emphasis curiam) grant court’s (affirming district however, point, the distinc- More to defendants where summary judgment for Stanley, upon and relied tion referenced finger hairline fracture to plaintiffs dissent, excessive force by the between treatment and no required little medical restoring prison order ver- the context thus de minim- medication and was pain Ruzieka, 99-6979, on a nonviolent is); inflicting punishment No. Germain sus. plaintiff to seek medical atten- where failed our circuit have rou- 10. District courts within 3:07-CV-61, holding tion); to exces- tinely applied Spencer, the Norman No. Brown Mathena, e.g., 29, Martin v. 4763317, sive force claims.' See (N.D.W.Va. Oct. at *4 2008 WL 150864, *3, 7:08-cv-00573, WL at No. 2009 2008) appropriate where (summary judgment 3856, (W.D.Va. Dist. LEXIS at *5-6 injuries re- plaintiff de minimis suffered 21, 2009) (dismissing excessive force Jan. pepper spray); Chatman v. sulting use of more than a de claim for failure to state 0047, Anderson, WL No. 7:05 cv injury which inmate received minimis in 36560, *3, 2090824, LEXIS at 2005 U.S. Dist. of blood as a with small amount scratch 26, (W.D.Va. 2005) (finding Aug. de min- *7-8 Green, bite); dog No. Lewis v. result of bruising pain due to plaintiff's neck and imis RWT-08-2649, 2969584, at *4-5 2009 WL incident); Bliley, alleged choking Garrett v. 14, 2009) (scratches (D.Md. by al- Sept. left 2333501, *4, 00497,, 2005 WL No. 7:05 cv prison guards de leged by constituted assault 37610, (W.D.Va. *7-8 U.S. Dist. LEXIS Corr., Dep’t injury); v. S.C. minimis Smalls 23, 2005) plaintiff’s (finding Sept. de minimis 6:09-2654-TLW-WMC, WL No. by "superficial caused correctional scratch” (D.S.C. 2009) (injuries *4 Dec. inmate). firing live round at another alleged de minimis officer eyes from mace use inmate, recognized pressure, migraine not under Norman as well as headaches was “psychological in the de minimis and dizziness” and trauma following cases its Norman, anguish including depression, and mental analysis. example, For injury panic nightmares attacks and cooperating involved of the as- Riley, and Wilkins sault.” Id. allega- some prisoners. there was While Taylor plaintiff that the was not tion complaint was filed in the Wilkins’ dis- police, sug- there was no cooperating with trict court for the Western District of gestion plaintiff that the was involved Carolina, North which the dismissed com- justified that the assault disturbance plaint pursuant for failure to state a claim alleged in that case. “In Norman. order to state exces- sive force claim under the Amend- specifically court declined

The Norman ment, á must establish he injury to base its de minimis rule on a injury.” received more than a de minimis security it prison distinction because did 3:08CV138-01-MU, Gaddy Wilkins v. No. separate “not base conclusion on a [its] (W.D.N.C., *1 Apr. 2008 WL by Sergeant conclusion that the force used 2008). court, The district which found Taylor in response to the disturbance injuries Wilkins’ no more severe than Taylor alleges creating Norman was Taylor those deemed de minimis in and by yelling during call.” -role Riley, also noted that Wilkins failed to Norman, Thus, n. required assert his had medi- alleged fact that Hill that he was not caus- cal attention. summarily We affirmed ing dispositive a disturbance is appeal that conclusion on based on the Moreover, qualified immunity. issue of court’s rationale under Norman district. dissent’s distinction for “restrained progeny. and its See Wilkins v. Gaddy, cooperative” inmate cannot be found (4th Cir.2009) Fed.Appx. (unpub- fact, in the Norman line of cases. In lished) curiam). (per “handcuffed,” plaintiff Riley Riley, leg 115 F.3d at and in “handcuffs and Reversing of this Court Taylor, irons” in 155 F.3d at when the Norman, abrogating Taylor, and Ri place. assaults took ley, Supreme in Court stated “[a]n gratuitously mate who is guards beaten requirement The threshold that a plain- ability does not lose pursue an ex tiff suffer more than a merely cessive force claim because he has to state an excessive force claim was thus good fortune to escape without serious settled law in this circuit until when Wilkins, injury.” 130 S.Ct. at 1178-79. abrogated Court Wilkins The Court also concluded that the Norman, Wilkins, Riley, Taylor. the prisoner alleged that a offi- corrections Fourth Circuit’s strained reading of cer, Gaddy, “maliciously sadistically” Hudson is not defensible. This Court’s any provocation.” not, assaulted him “without decision did as the Fourth Circuit Wilkins, it, Gaddy alleg- 130 S.Ct. at 1177. merely would have serve to lower the edly injury slammed Wilkins onto the floor and threshold for excessive force kick, “proceeded punch, knee choke ‘significant’ claims from to ‘non-de min until another phys- [Wilkins] officer had to imis ’—whatever those ill-defined terms ically Instead, remove him from might mean. the [Wilkins].” Court aimed (citations in original). judicial As a result of inquiry’ Gad- to shift the ‘core from force, dy’s Wilkins sustained “a bruised the extent of the to the nature of heel, pain, lower back specifically, increased blood the whether it was force—

321 liability guesses for “bad ... mali- officers applied and ‘was nontrivial they will gray areas” and ensures be cause harm.’ sadistically to ciously and violating bright-line liable held U.S; Hudson, 7, 503 (quoting Id. at 1179 557, Maynard, Braun v. 652 F.3d rules. 995). clari- The Wilkins Court 112 S.Ct. Cir.2011). (4th “operates It to ensure 560 force, the rather the nature of fied that suit, they subjected are offi- that before the rele- injury, the is than the extent of their conduct is cers are on notice force, however, “Injury and inquiry. vant Pelzer, 730, Hope unlawful.” v. correlated, it only imperfectly are 2508, 731, 122 153 L.Ed.2d 666 S.Ct. ultimately counts.” Id. at the latter (2002). Thus, the de minim- it is clear that (and the that this Court injury threshold deciding whether defendant circuit) re- had courts within district immunity, qualified is entitled to we exam considering excessive force upon lied (1) ine whether the facts illustrate that test. longer appropriate no claims is right Hill’s constitutional Crum violated however, is whether Crum’s question, The (2) force; and, so, if be free from excessive prior to place which took alleged conduct objectively whether Crum’s conduct decision, is Wilkins Court’s clearly reasonable view of estab immunity. by qualified covered lished law at the time of the event. 442, Rephann, v. 445 See Orem Analysis III. (4th Cir.2008) Katz, (citing Saucier v. 533 194, 200, 2151, 121 A. of Review S.Ct. 150 L.Ed.2d Standard U.S. (2001)).11 dispute does not 272 Crum court’s deni review the district We that there is a constitutional prong, first 50(b) motion de novo. Rule al of Crum’s of excessive force. His right to be free Inc., Transp., v. CSX Sloas F.3d qualified that he is entitled to argument is Cir.2010). (4th the facts in view We Hill’s claimed constitu immunity because to Hill. Id. light most favorable clearly violation was not established tional assault. Under the at the time of the Analysis B. Fourth Cir clearly established law of the immunity “Qualified shields 1, 2007, agree must on November cuit liability in from civil government officials with Crum. violate does not sofar as conduct .their right “clearly to be es For statutory or constitu clearly established case, tablished,” immunity qualified in a person a reasonable rights tional of which Freeh, must be suffi right contours of the v. 275 “the known.” Trulock would have Cir.2001) officer (4th that a reasonable ciently clear (quoting Har doing that what he is 102 would understand Fitzgerald, U.S. low (1982)). Layne, Quali right.” violates that Wilson 2727, 73 L.Ed.2d 396 S.Ct. 143 L.Ed.2d U.S. immunity protects law enforcements fied Callahan, permitted their sound to exercise should be U.S. 11. Pearson v. (2009), deciding' two clarified which of the 172 L.Ed.2d 565 discretion prong required immunity analysis to look first at that we are not prongs one: first in be should .addressed sequence ] forth Saucier particular [in set case [w]hile in the circumstances longer appropriate, is often it should hand. judges regarded mandatory. The 236, 129 S.Ct. 808. 555 U.S. at appeals and the courts of district courts Therefore, (1999). deciding right in wheth- must determine whether the at issue established, ‘clearly clearly was we was established’ at the time of the right er the conduct.”). an in At whether official officer’s the time of the must determine Hill, reasonably alleged knew or assault on Norman and its position defendant’s in progeny controlling known that the action he took were the Fourth should have of Al- rights the constitutional the Circuit and had been since 1994. violated 614-15, though abrogated 119 S.Ct. 1692. in plaintiff. See id. Wilkins Noman However, say only is not that an can be applied prospec- Wilkins “[t]his im- protected by qualified tively qualified action is in the context of a immuni- official Prater, very question ty analysis. action in munity unless See Fields v. 566 F.3d (4th Cir.2009) unlawful, (qualified immunity it previously has been held but is say pre-existing protects being that in the law defendants from “retroac- tively subject significant penalties at law apparent.” the unlawfulness must be 615,119 they proper for which did not have no- tice”). words, other in In long have held that it is case law “[W]e imputed retroactively Wilkins cannot be Supreme from this Circuit and the Court allegedly an officer in this circuit whose provide right notice whether predated tortious conduct the Wilkins de- clearly established.” Wide Lefemine applicable cision. The qualified law for (4th man, Cir.2012), 672 F.3d immunity purposes would that in be exis- — U.S.-, grounds, vacated on other alleged tence in the time of the as- (2012). 9, 184 L.Ed.2d 313 sault. determining right In whether a Norman, clearly established at the time of the 2007 under a reason violation, objec circuit able correctional officer would have claimed courts this tively ordinarily believed that the law in circuit beyond need not look the de- Court, was; was what the Fourth Circuit said it Supreme cisions of this court is, prevail could not appeals, highest and the on court excessive force claim “absent the most ex state in which the cases ... If a arose. circumstances,” traordinary if he had suf right recognized circuit, in some other Norman, fered injury. one, but not in this an official will ordi- Although 25 F.3d at 1263. Wilkins estab narily immunity retain the defense. lished the Fourth Circuit had been (quoting City Id. at 298-99 Edwards v. standard, applying the inqui incorrect (4th Goldsboro, 178 F.3d Cir. ry qualified immunity purposes —for 1999)) (internal —is marks, quotation altera not whether the correctly interpret officer tions, omitted). and citation ed the law as it would changed later As the Court made clear rather, years, but whether the conduct at Wilkins, Norman was an reading incorrect issue was reasonable on based the officer’s Regardless of Hudson. of how we view imputed knowledge of the law at the time. however, in retrospect, Norman we evalu- Crum’s reliance on Norman satisfies this issue, right ate whether the standard. immunity purposes, clearly estab- lished at the time of Crum’s conduct on Crum’s conduct was no years November three egregious before the more than the conduct of other Supreme Court decided Wilkins. See officers a multitude of cases in which Md., Meyers Cnty., v. Baltimore those officers were found not to have used (4th Cir.2013) (“[A] rule, court ... excessive force under the Noman appeal injuries on that his the Wilkins decision in our court. Hill contends including than de minimis because he See, (inserting were Riley, 115 F.3d at 1161 more e.g., injuries just more a sore nose, “received than pre-trial into detainee’s tip pen his of (Br. leg.” Appel- thumb or a stretched of slapping rip open, to nose threatening 18.) However, proof lee at Hill offered no force); Taylor, “medium” him with any injuries that he suffered as a result of object (shoving a small wooden F.3d at 484 Méade, registered Nurse the assault. nose, his cracking detainee’s pre-trial into nurse, assault, examined Hill who after head, in the tooth, hitting him back of his (J.A. Hill had injuries,” found that “[n]o ribs). him in the The simi- punching 192) contempora- and documented this in a cases to the case at bar larity of these report, Injury “Inmate Assessment neous that, under the law of our demonstrates (J.A. 201). Followup” testified Meade Wilkins, conduct prior circuit Crum’s 324 torture, humiliation, Hines, 781, are Fed.Appx.

of mankind” or 142 hitting and See, degradation. e.g., Riley, prisoner 115 F.3d at pepper with twelve blasts of (citing California, cell, Jackson, n. 4 spray 1168 Rochin 342 while confined in a 19 165, (1952) 205, 101, 72 96 L.Ed. Fed.Appx. U.S. were not “repugnant to proposition forcibly pumping for the that Moreover, the conscience of mankind.” suspect’s stomach for information il- previously after have in favor found of defen entering shocks legally his house the con- dants who assaulted a restrained inmate in science); Gardner, Jordan v. circumstances similar alleged by to those (9th Cir.1993) (en banc) Germain, Hill. See 2000 WL at *2- (prison policy of subjecting female inmates 3 (affirming summary judgment for defen random, non-emergency pat-downs sprayed dants who mace at and struck prison guards male is cruel and unusual prisoner with a baton a who was re punishment). strained, Morgan, cell, But see Jackson v. compliant, locked his and (4th Cir.2001) (un- Fed.Appx. disturbance). was not involved We published) (placing force, inmate isolation cell have not classified mere brute there days for wearing only fore, three “repugnant underwear to the conscience of in three-point restraint case, did not con- Hill mankind.” has cited to no repugnant stitute force none, to the conscience we have found where the injury pled mankind). proved “repugnant to the con science of mankind” in circumstances even District within our courts circuit have remotely close to those of the case at bar. similarly only egregious found conduct “re- pugnant to the conscience of conduct, mankind.” alleged Crum’s which is un- See, Lester, e.g., Davis v. 156 F.Supp.2d doubtedly reprehensible, nevertheless (W.D.Va.2001) (finding force, that forc- more akin to brute rather than hu- ing prisoner miliation, to be “restrained for 48 degradation, or torture as we hours with all four of his limbs and his have “extraordinary described circum- immobilized, chest lying on his back in is, therefore, his stances” in other cases. It own urine in a cold cell” repugnant to be clear that his conduct does not rise to the mankind); the conscience of Peoples v. level of “repugnant conduct to 'the con- Corr., Dep’t S.C. No. 8:07-1203-CMC- science of mankind.” In no sense do we BHH, (D.S.C. 2008 WL at *4-10 suggest that Crum’s conduct was 2008) Sept. (plaintiffs allegations appropriate officer, for a correctional but it prison officials flooded his cell with un- very fails to cross the high threshold for munition,” known “chemical after which he extraordinary permit circumstances that attention, not allowed to seek medical an excessive force claim to advance in the shower, cell, or clean his rose to the level absence of more than of alleging repugnant conduct purposes to the con- pre-Wilkins of a mankind); Warner, science of Acevedo v. immunity analysis. 7:03CV00526; No. Dist. U.S. LEXIS Furthermore, injuries Hill’s sug- do not (W.D.Va. *11-12, 15—*16 Mar. gest they painful they were so

2005) (finding that beating a restrained constituted inju- “more than de minimis prisoner, him, making racial slurs and ry,” the second of Norman’s two extraor- smearing feces and urine on his face was dinary circumstances. 25 1263 n. mankind). repugnant to the conscience of Nurse Meade found no hand,

On the other breaking prisoner’s report, documented this in her Hill did finger by slot, slamming hand in a any injuries mail not complain during flicting pain violated con- videotape taken a few on [Hill] [Hill’s] In the examination. O’Brien, assault, Hill shows visi- stitutional Hill v. No. rights.” after the hours 7:08-cv-00283, to appear 4566442, and not have *4 ble distress does 2011 WL (W.D.Va. 2011); Hill more than de injuries. pled 30, never any see Hill v. Sept. also no injury O’Brien, introduced evi- 7:08-cv-00283, and minimis No. 2012 WL injury, or any (W.D.Va. 2012) (“It de minimis other- 16, dence of at *4 Feb. wise. credibly be apparent is cannot de- —and nied—that a reasonable officer in Crum’s extraordinary circumstances Because have 2007 would position known injuries, and Hill applicable to Hill’s are a repeatedly punching prisoner restrained injury, more minimis suffered no than de stomach, ribs, in the and head for a sus- not, at the assault -took could the time he other to period, tained for no reason but place, upon a claim which relief could state n issue, punish him for a behavioral was- Eighth under the Amendment. granted be law.”). pre-existing unlawful in of Therefore, right to avail him- he seeks Therefore, ruling I affirm the of the would clearly established in the self of was district court. alleged at the time of the Fourth Circuit Consequently, Crum is entitled to

assault. immunity.

qualified I. of This case involves intersection IV. Conclusion judicial immunity qualified two doctrines: reasons, foregoing For the district in violation and use of excessive force 50(b) Rule denying order Crum’s court’s Eighth prohibition on Amendment’s reversed the case is remand- motion is punishment. cruel unusual the entry the district court for of ed to Crum entitled to Appellant Whether of judgment favor of Crum on basis qualified immunity alleged assault for. immunity. qualified requires on inmate familiar two- Hill AND REMANDED REVERSED That pronged inquiry. inquiry requires (1) the facts court determine “whether THACKER, Judge, dissenting: Circuit has ... or shown majority, to the I respect all due With of a ... make out a violation constitutional prevailing Under must dissent. Callahan, right,” 555 U.S. Pearson precedent available the time Court (2009) 172 L.Ed.2d 565 S.Ct. case, clearly it was the assault omitted) (internal (citing citations Saucier that an could not mali- established officer Katz, 194, 201, 121 S.Ct. 533 U.S. on a ciously sadistically impose harm (2001)); (2) “whether 150 L.Ed.2d custodial, handcuffed, completely.non- right ‘clearly at issue was established’ violating in- inmate without resistant alleged miscon- at the time of defendant’s right Amendment be free mate’s Saucier, duct,” U.S. (quoting id. punishment cruel and unusual —and 2151) (holding that the se- have reasonable known would officer man- inquiry is not quence the Saucier much. as datory). concluded, correctly the district court As qualified Appellant Crum not entitled A. in as cannot credi- immunity “[i]t much as Here, Crum has conceded [Appellant Appellant claimed bly Crum] immu- prong in- that the unnecessarily not on notice that first w[as] nity analysis alleged violation of a have repeatedly striking believed that —the right Appel- restrained, constitutional satisfied. cooperative, hunched-over in- —is (“[T]he mate, Br. lant’s evidence would allow long so jury resulted, reasonable conclude that he had in light clearly “was lawful[ ] rights.”). violated Hill’s constitutional established law and the information the specifically, repeated More Crum’s possessed.” Layne, officer[] blows Wilson v. against Hill allegedly good levied for “a minutes,” 142,1 (1999).

solid two J.A. while Hill L.Ed.2d 818 Appellant Crum restrained, cooperative, was and “at- claims that he was entitled to assault Mr. id., desk,” tempting] to hunch over [a] Hill unabated for over two long minutes so himself, protect they an effort to even if as resulting injury was de minimis. may only injuries, Indeed, have caused minor at argument, oral Appellant Crum clearly excessive force argued, essence, constituted in viola- that there were no tion of his right. Amendment limits to long excessive force as as there victim,

were no marks left on the or in B. words, other long “as as he didn’t hurt him, long as he didn’t cause more than This case then turns on the second injury.” Argument Oral at prong qualified immunity of the analysis: (No. 2:17, Crum, 12-6705), Hill v. avail- the right whether aforementioned able at http://www.ca4.uscourts.gov/ Pearson, clearly See established. 555 U.S. OAaudiotop.htm. Not so. Under control- available, 129 S.Ct. 808. When we ling Supreme precedent Court Court, Supreme consider “decisions of the time—not to mention applying pure com- this court of appeals, highest and the court mon sense—no reasonable officer could the state which the case arose” to have believed such abuse was lawful. right discern whether a clearly estab- Lott, lished. Owens ex rel. Owens v. 1. (4th Cir.2004) (internal quo- omitted).

tation marks “clearly To be es- Controlling Precedent tablished,” 1, 2007, On November the controlling right contours of the [t]he must suffi- Supreme authority Court for excessive ciently clear that a reasonable official force cases in the Eighth Amendment con- would understand that what he is doing McMillian, text was Hudson v.

violates that right. say This is not to (1992). 117 L.Ed.2d 156 that an official protected by action is One need read the paragraph first qualified immunity very unless the ac- Hudson to realize right at issue was question tion in previously has been held clearly established: unlawful, say but it is to This requires case tous decide wheth- pre-existing law the unlawfulness er the use of physical excessive force apparent. must be prisoner may constitute cruel 635, 640, Anderson v. Creighton, 483 U.S. punishment and unusual when the in- (1987) (in- S.Ct. 97 L.Ed.2d 523 mate does injury. not suffer serious We omitted). ternal citations answer question in the affirmative. Thus, inquire must whether on No- 503 U.S. at 1Í2 995. Supreme The vember a reasonable officer could Court went on emphasize as follows: 1. Citations to the "J.A.” Appendix refer to the Joint by parties appeal. filed in this (4th Cir.1994), the fact maliciously and remains sa- officials When harm, long Whitley cause con- set forth the distically use force to Hudson and of, decency always clearly standards control- temporary standing and established This true whether or violated. are at the time of this incident. ling precedent evident. Oth- injury is significant n erwise, Eighth Amendment would no mat- any physical punishment, permit of Force Use inhuman, inflicting ter how diabolic arbitrary quantity of in- than some less is, clear; was, proper The law jury. used, focus is on the not on force (emphasis supplied) 112 S.Ct. 995 resulting injury. determining whether omitted). (citation permissibly applied, force case, in this the time incident At has that “the Court extent held controlling Supreme had been Hudson inmate is factor” of suffered one fact, years. this Court-precedent Hudson, 15 many that be considered. should controlling before Hud- was the law even 7, (emphasis 503 U.S. at 112 S.Ct. 995 merely The Hudson Court extended son. Benjamin, v. supplied); see also Williams Albers, holding Whitley in 475 its prior (“The (4th Cir.1996) ab- 762 L.Ed.2d 251 106 S.Ct. 89 U.S. relevant, injury is but sence of serious (1986) the for an (regarding legal standard to be con- dispositive, not additional factor tutes cruel and unusual Eighth Amendment excessive for the use of excessive tain Whitley and and wanton claims plained that rather arising den good-faith effort excessive force also discipline, cause 112 S.Ct. U.S. Wilkins quantum harm.” Id. at by “whether force was out of a the 106 S.Ct. at inmates infliction “the maliciously 6-7, 112 Hudson, cases is not Gaddy, (quoting prison core to maintain or restore 1078). against prison Amendment.’ judicial inquiry” S.Ct. punishment “ riot), to and Whitley, ‘the pain force. The Court ex- whether a sustained, sadistically applied unnecessary force ... 34, 36, 130 1078; ” standard Hudson, officials forbid- consti- Under claim in U.S. cer- but see to at in tionship need for Eighth Amendment sidered sonably perceived by the' claim].”). son, amount cials, minor—which he does quotation marks broken sis of the other factors make clear Crum’s disturbance cessive. Even we assume Hill’s severity and use sprinkler, there in of if U.S. application Although between ^[4] Other force the in Hill’s cell that resulted of force any a forceful subjective analysis omitted). 7, 112 used, factors efforts made to there that need and of could the not ^[3] force, S.Ct. 995 response.” excessive had include responsible concede— the be no reason been a ^[2] deemed ex- threat rea- the rela- (internal “[1] temper [of analy- Hud- force were prior offi- in a the the had to restore exercise force order —order (2010) (“In 175 L.Ed.2d Indeed, already the source been restored. showing to a requiring what amounts of the cellmate—had disturbance —Hill’s significant injury to state an ex- order the, time of from the cell at been removed claim, force Fourth Circuit has cessive the re- Hill remained the incident at issue. of this strayed from clear strained, when cooperative and compliant, supplied)). (emphasis Court in Hudson.” the scene. arrived on prison guards Thus, although misinterpreted this circuit (“Officer over Crum came Taylor, See J.A. 141-42 Norman v. Hudson security prison justified that we to ed requested to the cell and submit at least Norman, re- some response. I submitted hand 25 F.3d at 1263 hand restraints. (“On placed understanding He handcuffs on us.... n. 5 of the inci- straints. dent, to tell me I began question couldn’t there can [Officer Crum] out my legal properly take of the cell which district court held that work the force During justified good was soaked with water. that time used was faith effort down, (internal I I put my legal put legal discipline.” work maintain or restore . down.”). omitted)). quotation Here, work not Appellant Crum does marks notes, cellmate, testimony. majority refute A lone coopera- Hill’s it was Hill’s inmate, Hill, tive sprinkler handcuffed hunched over who had broken the a desk created the initial disturbance. Ante pose could not reasonable threat event, And, to a sufficient to justify officer 314-15. the distur- Moreover, Appellant use quelled of force. Crum bance had been at the of this time severity result, temper did not incident.3 force As a reasonable officer rather, employed, but, allegedly continued have relied Norman could not on justify total beating beating Hill for a of two minutes. of a sustained restrained cooperative These factors indicate Crum exercised inmate.

force, good-faith not in a effort to restore II.

order, but, rather, maliciously and sadisti- cally simply harm.2 to cause Ultimately, whatever erroneous inter- Hudson, Norman

pretive gloss placed on 3. Gaddy, see Wilkins v. (2010) (abro- 175 L.Ed.2d 995 Taylor v. Norman Norman), on gating November it Critically, correctly district court as the would readily apparent have been a to out, pointed the facts of a Hudson —where reasonable officer that a where distur- restrained, cooperative inmate in the abated, already bance had been he could cell, being transported course of to another restrained, compliant, assault a physically by prison beaten officials— cooperative good inmate for “a solid two are present far more to the analogous case minutes,” 142, punching elbowing J.A. than the facts of Norman. Indeed, Nor- head, him repeatedly in the abdomen and man distinguishable is from this case. without applying excessive force in viola- case,

Unlike the present in tion of inmate the inmate’s Amendment Norman had right himself created disturbance to be free cruel and unusual by yelling punishment. to other inmates which disrupt- Accordingly, I would hold Hill, According fact, 2. justification significance. Crum threatened him In we —is saying sprinkler, "break another I’ll break recognized exact distinction its con- your testimony neck.” J.A. 52. Hill’s further consequences Stanley Hejirika, stitutional may revealed use that Crum’s of force have (4th Cir.1998). Stanley, 134 F.3d 629 purpose had another malevolent —retribution. "bruises, swelling, found that and a loosened leading up Hill testified the month that in tooth sustained in fracas that occurred issue, grievance the incident at he filed with prison guards while trying quell were ("I Crum. Id. at Officer constitutionally insignificant disturbance are up had previously.”). Officer written Crum distinct from loosened tooth and a surprise 3. plate It should cracked come as dental sustained in the this dis- context is, tinction —that the distinction between in- punishment deliberately by guards inflicted applied stances where is force to restore or- argument.” because aof verbal Id. at 638. applied der and it instances where without not entitled Appellant Crum the decision affirm

immunity, and court.

district America, STATES

UNITED

Plaintiff-Appellee BROWN; Wayne Leah

Kenneth Brown, Defendants-

Michele

Appellants. 12-10592.

No. Appeals, Court

United States

Fifth Circuit.

July would notes report that her have included Norman have been settled would dizziness, pain, his of regarding feelings analysis. or she inability to stand understand had in Wilkins rep- provides Our decision any problems, noticed or if he had com- that supports decision Crum’s resentative injuries. plained of Hill’s medical rec- two qualified immunity argument. Over of any complaints do not indicate ords here, years events at issue after stemming from And injuries the assault. immunity grant qualified affirmed pro se lawsuit filed when Hill first his to establish more than de min- for failure eleven officials Lee at USP imis alleged injury injury where Wilkins deprivations he alleging rights, various n on prison guard beating based or did not name Crum as a defendant injuries ‘a including “multiple physical any injuries of the No- arising claim out heel, increased pain, bruised low back complaint. assault in vember migraine as well as head- pressure, blood allega- rise simply Hill cannot above “psychological dizziness’” and aches and complaint in his the evidence ten- tions anxiety, depression, and injuries such the district court for resolution dered to of. Wilkins, panic 2008 WL 1782372 attacks.” 50(b) motion. While we must the Rule light Hill’s in the Viewing *1. evidence the evidence in most construe .the him, most favorable his claim Hill, that we cannot construe favorable (and objectively ap- greater would injuries not exist. Hill’s were which does less) pear than those found to be no more clearly de minimis. than minimis Wilkins de Norman, however,- Under immunity purposes. minimis may de injuries still with under the bring an excessive force claim Norman, thé in de- key inquiry Under when “extraor- Eighth Amendment certain prisoner termining whether stated dinary present. circumstances” are Such plain- force claim whether the excessive “extraordinary are either circumstances” de minimis. injuries tiffs were more than “repugnant forcé used was that the may determine whether Hill’s We suf- pain of mankind” or the conscience as a matter of law. See were de minimis properly “such it can fered was Morris, Carter v. F.3d 219 n. more than said to constitute (4th Cir.1999) (finding plaintiffs Norman, ,4. at 1263 n. injury.” it- injury was “so claimed insubstantial matter of her- that have been support types cannot as a law The actions claim”). “repugnant to the conscience classified as

Case Details

Case Name: Demetrius Hill v. C.O. Crum

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 14, 2013

Citation: 727 F.3d 312

Docket Number: 12-6705

Court Abbreviation: 4th Cir.