Wе decide in this appeal whether an officer, James Gilstrap, used excessive force in violation of the Fourteenth Amendment when he kicked a pretrial detainee, Reginald Scott Fennell, who was combative and struggling with police officers. Gilstrap witnessed an earlier struggle between Fennell and officers, heard Fennell threaten officers, heard a fellow officer call out for Fennell to let go of his arm while struggling with Fеnnell, and witnessed six officers struggle unsuccessfully to handcuff Fennell for fifteen seconds. Gilstrap attempted to kick Fennell in the arm, but his kick landed on Fen-nell’s face. We conclude that Fennell has not shown that Gilstrap’s kick was a malicious and sadistic use of force in violation of the Fourteenth Amendment. Accordingly, Gilstrap is entitled to qualified immunity for Fennell’s 42 U.S.C. § 1983 claim against him alleging excessive force in violation of the Fourteenth Amendmеnt.
I. BACKGROUND
On January 28, 2007, Sheriffs Deputy Kevin Hubbard arrested Reginald Fennell on several misdemeanor charges. 1 While in Hubbard’s car, Fennell began kicking the windows and doors, and so Hubbard placed leg restraints (a hobble) on him. (R.l-30, Statement of Kevin Hubbard at 3-4.) Deputy James Gilstrap heard on the police radio that Hubbard was bringing someone to the jail who was combative. (R.l-23 at 28.) When Hubbard and Fen-nell arrived at the jail, Hubbard and other officers brought Fennell into the pаt-down room. 2 (R.l-23 at 18.) The officers placed Fennell on the floor because he was being combative and uncooperative during the pat down. (R.l-30, Statement of Kevin Hubbard at 5.) Gilstrap, having heard a commotion in the pat-down room, entered the room. (R.l-23 at 18.) While on the floor, Fennell verbally abused the officers, and threatened to come after Deputy Hubbard at his home. (R.l-30, Statement of Diane Carter at 3; Statement of Kevin Hubbard at 4.) Hubbard and the other officers removed Fennell’s boots and leg restraints, brought Fennell to his feet and placed him against a wall. (R.l-30, Statement of Kevin Hubbard at 5.) Hubbard then removed Fennell’s handcuffs. (Id.) At this time, Fennell was calm. (R.l-30, Statement of Jeremy Woody at 3.) Gilstrap then left the room; seven officers remained in the room with Fennell. (R.l-30, Statement of James Gilstrap at 3; Statement of Christina Bell at 3.)
One of the officers asked Fennell to remove his hooded sweatshirt. (R.l-30, Statement of Christina Bell at 1.) As he was removing his sweatshirt, Fennell “kept turning around looking at [the officers] in a very aggressive manner.” (Id.) “[H]e was trying to make eye contact with people like, picking out who it was he was gonna take out_” (R.l-30, Statement of Dawn Walker at 4.) One of the officers told Fennell to turn around and face the wall, and he did so. Fennell then took his hands off the wall and turned around again. (R.l-30, Statement of Waltеr Hus-key at 2.) Deputy Walter Huskey then physically turned Fennell back around towards the wall, and Fennell’s head bumped the wall. (Id.) Fennell yelled, turned around, grabbed Huskey with his left arm and starting moving his right arm with a closed first towards Huskey. (Id.) *1215 The officers in the room then wrestled Fennell to the ground, where a struggle ensued. (R.l-30, Statement of Kevin Hubbard at 5; Statement of Walter Hus-key at 2-3.)
Fennell grabbed Huskey’s arm and twisted it; Huskey shouted, “Let go of my arm, let go of my arm.” (R.l-30, Statement of Walter Huskey at 3.) Gilstrap heard Huskey’s cries and entered the pat-down room. (R.l-23 at 22.) When Gil-strap entered the room, he saw Fennell struggling with officers. (Id.) Some officers were trying to contain Fennell’s feet. (R.l-30, Statement of Kevin Hubbard at 5.) Others were hitting Fennell in an attempt to get him to let go of Officer Huskey’s arm. (R.l-30, Statement of Daniel Jared Weathers, at 4.) Gilstrap walked around Fennell in an effort to “try and break his hold loose by kicking him in the arm.” 3 (R.l-23 at 23.) Gilstrap then prepаred to kick Fennell by moving an officer out of the way and telling him to move his (the officer’s) head. (Id. at 33; R.l-30, Statement of Daniel Jared Weathers at 5). Gilstrap, wearing military-style boots, kicked Fennell in the face. (R.l-23 at 23.)
After the kick, the officers were able to roll Fennell over and handcuff him. (R.l-30, Statement of Daniel Jared Weathers at 5; see also R.l-30, Statement of Walter Huskey at 3.) A pool of blood was on the ground, and Fennell had a left orbital fracture, а septal fracture, and a nasal fracture. (R.l-30, Cartersville Medical Records at 4; R.l-23 at 25.)
Following an internal investigation, the Bartow County Sheriffs Office fired Gil-strap for using excessive and unnecessary force when he kicked Fennell. (R.l-24 at 12.)
Fennell then filed this lawsuit against Gilstrap in his individual capacity, seeking relief under 42 U.S.C. § 1983 and Georgia law. Fennell alleged that Gilstrap violated his right to be free from injuries caused by excessive force. (R.l-1 at 4.)
Gilstraр moved for summary judgment. The district court understood Fennell’s § 1983 claim to assert a Fourteenth Amendment 4 violation, as the alleged excessive force occurred while he was a pretrial detainee. The court first determined that a genuine dispute existed as to whether Fennell had established a constitutional violation. (R.l-34 at 24-25.) The court then examined whether Gilstrap’s actions violated clearly established law. (Id. at 33.) The court concluded that it was not clearly established that Gilstrap’s actions violated Fennell’s constitutional rights, and so granted summary judgment to Gilstrap on the § 1983 claim. (Id. at 34-35.) The court then declined to exercise supplemental jurisdiction over Fennell’s state law *1216 claim, and dismissed it without prejudice. (Id. at 37.) Fennell appeals the order granting summary judgment and dismissing his state law claim.
II. ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES
We examine in this appeal whether Gil-strap is entitled to qualified immunity for this alleged Fourteenth Amendment violatiоn, and whether the district court erred in dismissing Fennell’s state law claim.
Fennell argues that, under this circuit’s precedent, qualified immunity is not available once a plaintiff has shown excessive force in violation of the Fourteenth Amendment. Accordingly, Fennell contends the district court erred in granting summary judgment on his § 1983 claim and dismissing his state law claim.
Gilstrap responds that he is entitled to qualified immunity because Fennell has failed to show evidence that Gilstraр violated Fennell’s Fourteenth Amendment rights, and because, even if a violation did occur, it was not in violation of clearly established law.
III. STANDARD OF REVIEW
We review de novo the district court’s grant of summary judgment.
Skrtich v. Thornton,
TV. DISCUSSION
First, we address whether qualified immunity is available once a plaintiff has shown excessive force in violation of the Fourteenth Amendment. Fennell relies on
Bozeman v. Orum,
The qualified immunity inquiry usually involves two prongs. First, a plaintiff must show that a constitutional or statutory right has been violated. Second, a plaintiff must show that the right violated was clearly established.
6
Danley v. Allen,
We agree with Fennell, therefore, that the district court erred in granting summary judgment on the ground that Gil-strap’s use of excessive force was not a violation of clearly established law after holding that there was evidence of a violation of the Fourteenth Amendment through the use of excessive force. Fen-nell is correct that he needed only to show that there was evidence to support a finding that Gilstrap had violated the Fourteenth Amendment to defeat Gilstrap’s claim of qualified immunity, and the district court concluded that Fennell had, in fact, made such a showing.
Nonetheless, the district court’s grant of summary judgment is due to be affirmed because, as Gilstrap argues, Fen-nell has failed to show that Gilstrap’s use of force constituted excessive force violating the Fourteenth Amendment.
A jailor’s use of force against a pretrial detainee is excessive under the Fourteenth Amendment if it “shocks the conscience.”
Danley,
The standard for showing excessive force in violation of the Fourteenth Amendment, therefore, is higher than that required to show excessive force in violation of the Fourth Amendment. And, indeed, it is higher than that required to show excessive force in violation of Bartow County Sheriffs Office’s policies. Here, the Bartow County Sheriffs Offiсe, after an internal investigation, concluded that Gilstrap’s use of force was both excessive and unnecessary. That conclusion, even if correct, does not answer the question of whether Gilstrap maliciously and sadistically used force to cause Fennell harm, and thus violated Fennell’s Fourteenth Amendment rights.
We consider the following factors in determining whether the force was applied maliciously and sadistically to cause harm, and thus violated the Fourteenth Amendment: a) the need for the application of force; b) the relationship between the need and the amount of force that was used; c) the extent of the injury inflicted upon the prisoner; d) the extent of the threat to the safety of staff and inmates; and e) any efforts made to temper the severity of a forceful response.
Cockrell v. Sparks,
A. The need for the application of force
Fennell argues that there was no need for force, because Officer Huskey was never in danger, and, at the time of the kick, Huskey’s arms were clearly free. 7 The undisputed testimony, which is not contradicted by the videotape, is that Gilstrap knew a combative detainee was brought into the station who had to be subdued while he verbally threatened officers. Gil-strap left the room, but returned when he heard a fellow officer yell for someone to let go of his arm. Upon entering the room, Gilstrap saw Fennell struggling with six officers, who were unable to restrain or control him, and were unable to handcuff him during the entire 15 seconds Gilstrap was, on this occasion, in the room.
In
Cockrell,
we held that an officer’s use of force to quiet an inmate who was shouting was reasonable under the circumstances.
B. The relationship between the need and the amount of force used
Fennell argues that there was no need to use the amount of force used because the officers were getting Fennell under control, and no one requested Gilstrap’s assistance. Fennell’s argument is bottomed on his assertion that he was no longer threatening to come after officers at their homes, or disobeying orders to stay оn the wall, or staring down officers while disobeying commands, or fighting six officers in the pat-down room, or grabbing and twisting an officer’s arm, and therefore, Gilstrap’s kick was an inappropriate amount of force.
There are two problems with Fennell’s argument. First, our precedent permits the use of force even when a detainee is not physically resisting. We have held that when a prisoner created a disturbance by failing to follow a prison guard’s instructions and shouting obscenities, it was not unreasonable for the guard to grab the prisoner by the throat and shove him against the prison bars.
Bennett v. Parker,
Second, the evidence is clear that Fen-nell was not yet secured during his fight with six officers.
Cf. Hadley v. Gutierrez,
C.The extent of the injury inflicted wpon the prisoner
Here, Fennell’s injuries were substantiаl. In addition to bruising and cuts, he suffered a left orbital fracture, a septal fracture, and a nasal fracture. His injuries later required him to undergo surgery.
As extensive as Fennell’s injuries are, we have held that this may be outweighed by the officer’s inability to reasonably anticipate the severity of the injury.
Cockrell,
D. The extent of the threat to the safety of staff and inmates
Fennell had been hobbled because he tried to kick out the windows of the deputy’s cruiser. He was combative during the initial pat down. He threatеned officers verbally. He stared officers down before grabbing one with his hand. He struggled with six officers on the ground, and those six officers were unable to handcuff him, even after 15 seconds of attempting to subdue him. During that struggle, Fen-nell grabbed one officer’s arm such that the officer yelled, more than once, for him to let go of his arm. Therefore, it was not unreasonable for Gilstrap to believe that Fennell posed a substantial threat to thе safety of the officers around him.
E. Any efforts made to temper the severity of a forceful response
Fennell argues that this factor favors concluding that Gilstrap’s use of force was malicious and sadistic because Gil-strap did not consider doing anything other than kicking Fennell, and thus no effort was made to temper the severity of the forceful response. Fennell misunderstands the thrust of this factor, and he attempts to reargue thаt Gilstrap’s use of
*1220
force was disproportionate to the amount of force needed. This factor allows the court to take into account efforts by the police to mitigate the effects of the force that was applied. For instance, in
Cockrell,
the fact that the officers immediately summoned medical assistance for the injured inmate was strong evidence that there was no malicious and sadistic purpose in the use of force.
In this case, considering all the factors, the undisputed evidence does not show that Gilstrap kicked Fennell maliciously and sadistically. Fennell insists that the kick was unnecessary, that Huskey was never in danger, and that Fennell had stopped struggling. But, Fennell did not testify to this effect, and the statemеnt of every officer in the room during the struggle suggests otherwise. (R.l-30, Statement of Cristina Marie Bell at 1-2; Statement of Kevin Hubbard at 5; Statement of Walter Huskey at 3; Statement of Dawn Walker at 5-6; Statement of Daniel Jared Weathers at 5; Statement of Jeremy Woody at 5; R.l-19, Ex. D at 4.) Having viewed the videotape, we cannot say that it contradicts the officers’ accounts of the struggle.
In the absence of evidence that Gilstrap acted maliсiously and sadistically, his use of force does not shock the conscience, and thus did not violate the Fourteenth Amendment. Fennell has therefore failed to show any constitutional violation. Gil-strap is entitled to qualified immunity, and summary judgment in his favor was appropriate.
Because summary judgment on Fen-nell’s § 1983 claim was appropriate, we find no error in the district court’s dismissal without prejudice of his state law claim.
V. CONCLUSION
We affirm the district court’s order granting summary judgment to Gilstrap, and dismissing the state law claim.
AFFIRMED.
Notes
. Fennell does not remember what happened during his arrest or while at the police station on January 28, 2007. (R. 1-21 at 26-27.) Accordingly, the evidence about what occurred comes entirely from the statements of police officers and a surveillance video of the pat-down room.
. The surveillance video does not contradict the officers' statements about whаt happened in the pat-down room.
. Fennell argues repeatedly that the video shows Gilstrap walking around a prone and subdued Fennell to carefully kick a man in the head who had stopped resisting. Gilstrap testified, however, that he walked around Fennell, who was entangled with six police officers, to try to kick him in the arm; the video does not contradict that. While we view the evidence in the light most favorable to Fennell, we cannot ignore uncontradicted evidence simply because it is unfavorable to Fennell.
. The district court also stated in a footnote that its conclusion would have been the same if Gilstrap's kick had violated Fennell's Fourth Amendment rights, and not Fourteenth. Although Fennell argues in his initial brief that he has shown a Fourth Amendment violation, he correctly states in his Reply Brief that his claim is governed by the Fourteenth Amendment. (Appellant’s Reply Br. at 6-7.)
See Garrett v. Athens-Clarke County, Ga.,
. A claim of excessive force under the Fourteenth Amendment is analyzed as if it were an excessive-force claim under the Eighth Amendment.
Bozeman,
. Although the Supreme Court recently held that lower courts are no longer required to address these prongs in order, it recognized that it is "often beneficial” to do so.
Pearson
v.
Callahan,
555 U.S. -, -,
. Major Gary Dover's after-the-fact assessment that Huskey was “never in great peril,” (R.l-24 at 36), is irrelevant to the question of whether force was needed. We examine the facts as they appeared to Gilstrap at the time he used force, not the facts as they appeared to a commanding officer at the conclusion of an exhaustive investigation. Dover admitted that he was judging the situation with the “benefit of hindsight.” (Id. at 34.)
. Fennell would have us infer from the videotape that Gilstrap carefully planned and executed a kick to Fennell’s face. Having viewed the tape in the light most favorable to Fennell, we cannot see how it contradicts Gilstrap’s testimony that he was trying to kick Fennell in the arm.