                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 16-6117


JEAN BERNARD GERMAIN,

                Plaintiff - Appellant,

          v.

WEXFORD HEALTH SOURCES, INC.; AUTUMN DURST; KRISTI CORTEZ;
JANE DOE #2, RN; RICHARD RODERICK; WARDEN BOBBY P. SHEARIN;
CARLA BUCK; LIEUTENANT MCALPINE; LIEUTENANT CROSS; SERGEANT
G. FORNEY; CORPORAL J. WILT; OFFICER CHRISTOPHER PRESTON;
OFFICER JEREMY WOLFORD,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:13-cv-00382-JFM)


Submitted:   July 18, 2016                 Decided:   November 7, 2016


Before Chief Judge GREGORY, and WYNN and DIAZ, Circuit Judges.


Affirmed in part, vacated and remanded in part by unpublished
per curiam opinion.


Jean Bernard Germain, Appellant Pro Se.      Gina Marie Smith,
MEYERS, RODBELL & ROSENBAUM, PA, Riverdale, Maryland; Stephanie
Judith Lane-Weber, Assistant Attorney General, Baltimore, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Jean    Paul        Germain       appeals       the   district        court’s    orders

granting summary judgment to the Defendants and dismissing his

42 U.S.C. § 1983 (2012) complaint.                      We affirm in part, vacate in

part, and remand.

       Germain       claimed          that     the     Defendants       were       deliberately

indifferent         to    his        medical    needs    and   engaged         in    cruel    and

unusual punishment.               We review de novo a district court’s order

granting summary judgment.                     D.L. ex rel. K.L. v. Balt. Bd. of

Sch.    Comm’rs,         706     F.3d    256,    258    (4th   Cir.      2013).        “Summary

judgment is appropriate only where there is no genuine issue of

material fact and the movant is entitled to judgment as a matter

of   law.”       Id.           “In    determining       whether     a    genuine      issue    of

material fact exists, we view the facts, and draw all reasonable

inferences,         in     the       light     most    favorable        to   the    non-moving

party.”       Id.    However, conflicting evidence will prevent summary

judgment only if it creates a “genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

       We have reviewed the record and conclude that the district

court properly granted summary judgment to the Defendants on all

of   Germain’s           claims       except    Germain’s      claim         that    Lieutenant

McAlpine, Officer Preston, and Officer Wolford engaged in cruel

and unusual punishment as they forcibly removed Germain from his

cell.     Germain claims that Preston beat him on his head and

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face,       knocking   a    tooth   loose,        and   that       either    Wolford     or

McAlpine twisted his right foot, causing severe pain.

       “[T]he     Eighth    Amendment’s      prohibition         against      ‘cruel    and

unusual punishments’ [extends] to the treatment of prisoners by

prison officials . . . [,] forbid[ding] ‘the unnecessary and

wanton infliction of pain.’”                Hill v. Crum, 727 F.3d 312, 317

(4th Cir. 2013) (quoting Whitley v. Albers, 475 U.S. 312, 319

(1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S.

34 (2010)).       In a case such as this, the question is whether the

force “was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically for the very purpose

of     causing    harm.”         Whitley,       475   U.S.    at    320-21        (internal

quotation marks omitted).

       We    observe      that   neither    Preston,         Wolford,       nor   McAlpine

addressed Germain’s claim that, during the cell extraction, he

was punched in the face, knocking a tooth loose, and had his

right foot twisted in such a way to cause severe pain.                                  The

Defendants did not refute the claim or show that the use of such

force was justified under the circumstances. *                        In light of the

fact       that   these     three   Defendants          failed      to   address       this

particular claim, we are compelled to vacate that part of the

       *
       We note that the record conclusively shows that the
Defendants’ use of pepper spray was not cruel and unusual
punishment and Germain was not denied a decontamination shower.



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court’s    order    addressing      this       claim       and    remand    for    further

proceedings.

     Finally, we have considered Germain’s claims that he was

denied    due    process     and   that    the       district       court       abused    its

discretion       granting    appointed     counsel’s             motion    to    withdraw,

denying    Germain’s    subsequent        motion       to    appoint       counsel,       and

denying    his    motion     for   recusal,          and   find     these       claims    are

without merit.

     Accordingly, we affirm in part, and vacate in part, and

remand that part of the district court’s order granting summary

judgment   to     Preston,    Wolford,         and    McAlpine      on     the    issue   of

whether they engaged in cruel and unusual punishment while they

were removing Germain from his cell.                        We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.



                                                                AFFIRMED IN PART;
                                                     VACATED AND REMANDED IN PART




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