Lead Opinion
Plaintiff Demetrius Hill (“Hill”) sued Correctional Officer William Crum (“Crum”) pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
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
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.
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 in visible distress, he alleged he had a swollen eye, although that is not apparent in any of the videos.
Theresa Meade (“Meade”), a registered nurse, examined Hill after he was moved to the holding cell. Meade found that Hill had “[h]o injuries,” (J.A. 192), and documented her assessment in a contemporaneous report, “Inmate Injury Assessment and Follow-up,” (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 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.
Initially, the district court sua sponte dismissed Hill’s excessive force claim
While Hill’s case was pending on appeal to this Court, the Supreme Court decided Wilkins v. Gaddy,
On remand, Crdm 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. 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.”
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,
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,
The Hudson Court further stated
*318 [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,
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,
In Taylor v. McDuffie,
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,
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 328 n. 3. Stanley, however, like the myriad other cases from this Circuit decided in the Norman line, recognized that the proper inquiry, preWilkins, 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 unusual punishment[.]” Stanley,
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
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,
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,
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, á plaintiff must establish that he received more than a de minimis injury.” Wilkins v. Gaddy No. 3:08CV138-01-MU,
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,
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*321 nontrivial and ‘was applied ... maliciously and sadistically to cause harm.’
Id. at 1179 (quoting Hudson, 503 U.S; at 7,
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.,
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,
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,
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,
“[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,
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,
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.,
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,
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 Noman rule,
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,
Under Norman, thé key inquiry in determining whether a prisoner stated an excessive force claim is whether the plaintiffs 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,
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 Méade, 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 Eighth Amendment when certain “extraordinary circumstances” are present. Such “extraordinary circumstances” are either that the forcé 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,
The types of actions that have been classified as “repugnant to the conscience
District courts within our circuit have similarly found only egregious conduct “repugnant to the conscience of mankind.” See, e.g., Davis v. Lester,
On the other hand, breaking a prisoner’s finger by slamming his hand in a mail slot, Hines,
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.
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
Notes
. 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.,
. 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.
. 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.
. 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.
. Section 1915A(b)(l) 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.”
. Abrogated by Wilkins v. Gaddy,
. 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.,
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
. The district court has stayed further proceedings pending this appeal.
. 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,
. 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,
. Pearson v. Callahan,
[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.
Dissenting Opinion
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.nonresistant 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,
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,
A.
Here, Appellant Crum has conceded that the first prong of the qualified immu
B.
This case then turns on the second prong of the qualified immunity analysis: whether the aforementioned right was clearly established. See Pearson,
[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,
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,
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,
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.
*327 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,
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,
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,
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
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,
II.
Ultimately, whatever erroneous interpretive gloss Norman placed on Hudson, see Wilkins v. Gaddy,
. Citations to the "J.A.” refer to the Joint Appendix filed by the parties in this appeal.
. 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.”).
. 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,