                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-6643


ROBERT CAMPBELL,

                Plaintiff – Appellant,

          v.

JEAN SMITH; SHAMYRA MCREA; JOHN BRITT; SGT. MCCLINEN,

                Defendants – Appellees.



                              No. 10-6737


ROBERT CAMPBELL,

                Plaintiff – Appellee,

          v.

JEAN SMITH; SGT. MCCLINEN,

                Defendants – Appellants,

          and

SHAMYRA MCREA; JOHN BRITT,

                Defendants.



Appeals from the United States District Court for the District
of South Carolina, at Rock Hill. Patrick Michael Duffy, Senior
District Judge. (0:08-cv-03668-PMD)
Submitted:   October 14, 2010          Decided:   October 21, 2010


Before MOTZ, KING, and DAVIS, Circuit Judges.


No. 10-6643 dismissed; No. 10-6737 dismissed in         part   and
affirmed in part by unpublished per curiam opinion.


Robert Campbell, Appellant/Cross-Appellee Pro Se.  Christopher
R. Antley, DEVLIN & PARKINSON, PA, Greenville, South Carolina,
for Appellees/Cross-Appellants.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Pursuant to 42 U.S.C. § 1983 (2006), Robert Campbell,

a South Carolina inmate, filed an action seeking damages for

alleged civil rights violations in connection with an incident

that occurred at the Evans Correctional Institution on June 25,

2008.      Campbell    claims      that     Defendants          Jean      Smith    and        Sgt.

McClinen used excessive force against him when Smith sprayed him

with tear gas following a verbal altercation and later hit him

in the face while McClinen restrained him, even though he was

handcuffed at the time.            Campbell received a prison disciplinary

conviction     for     assaulting         Smith         and     claims         further        that

Defendants Shamyra McRae and John Britt conspired against him on

Smith’s behalf to charge him with the disciplinary infraction.

            Defendants      moved         for       summary      judgment,        asserting,

among other arguments, a defense of qualified immunity to suit.

The     magistrate     judge     recommended            that       Defendants’          summary

judgment    motion    be    granted       as       to   Campbell’s        excessive       force

claim    challenging       Smith’s    use          of    tear      gas    and     his     claim

challenging    his     disciplinary             conviction         and     denied        as    to

Campbell’s     excessive        force           claim       challenging          Smith         and

McClinen’s actions while Campbell was handcuffed.                               The district

court    adopted     the   magistrate          judge’s        recommendation,           granted

Defendants’     summary        judgment            motion     on      Campbell’s         claims

challenging    Smith’s       use     of     tear        gas     and      his    disciplinary

                                               3
conviction, dismissed McRae and Britt from the suit, and denied

Defendants’      summary        judgment     motion      on   Campbell’s         excessive

force claim challenging Smith and McClinen’s actions following

Smith’s use of the tear gas, implicitly rejecting their request

for qualified immunity.              Campbell noted an interlocutory appeal

(No. 10-6643), and Smith and McClinen noted an interlocutory

cross-appeal (No. 10-6737).

           This court may exercise jurisdiction only over final

orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and

collateral      orders,        28   U.S.C.   § 1292      (2006);   Fed.     R.    Civ.   P.

54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-

47   (1949).         As   to    Campbell,     the    district      court’s       order   is

neither    a    final      order      nor    an    appealable      interlocutory         or

collateral order.          Accordingly, in No. 10-6643, we dismiss the

appeal for lack of jurisdiction.

           With       respect       to   Smith     and   McClinen’s    cross-appeal,

although       the    Supreme       Court    has    recognized       that        an   order

rejecting a claim of qualified immunity is an appealable order

at the summary judgment stage, Mitchell v. Forsyth, 472 U.S.

511, 530 (1985), immediate appealability of an order rejecting a

government official’s qualified immunity defense is appropriate

only if the rejection rests on a purely legal determination that

the facts do not establish a violation of a clearly established

right, Johnson v. Jones, 515 U.S. 304, 319-20 (1995).                            Thus, “if

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the appeal seeks to argue the insufficiency of the evidence to

raise a genuine issue of material fact, this Court does not

possess jurisdiction under [28 U.S.C.] § 1291 to consider the

claim.”      Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir.

2009).

            Relying on the parties’ conflicting accounts of the

events following Smith’s use of the tear gas, the district court

concluded that there existed in the record evidence from which a

reasonable trier of fact could conclude that Smith and McClinen

acted maliciously and sadistically to cause Campbell harm while

he was handcuffed and restrained.                   Although Smith and McClinen

claim     that   their    application         of    force    did     not   amount    to

excessive    force   violating      the   Eighth         Amendment    because     Smith

only slapped Campbell, we lack jurisdiction to consider this

claim, as it asserts the “insufficiency of the evidence to raise

a genuine issue of material fact.”                 Id.

            Although we have jurisdiction to consider Smith and

McClinen’s claim that they were entitled to qualified immunity

because a prison officer’s singular attack on an inmate does not

qualify as punishment, we nonetheless conclude it fails because,

in   June   2008,    it    was    clearly      established         that    the   Eighth

Amendment    forbade      the    “unnecessary        and    wanton    infliction    of

pain” against inmates.            Whitley v. Albers, 475 U.S. 312, 319

(1986) (internal quotation marks omitted).                   Not every infliction

                                          5
of pain is forbidden, however, and prison officials may apply

force   to    an   inmate    “in    a   good     faith   effort     to    maintain     or

restore [prison] discipline.”                Id. at 320 (internal quotation

marks   omitted).       However,        where     prison    officials      use    force

“maliciously and sadistically for the very purpose of causing

harm,” an Eighth Amendment violation has occurred.                        Id. at 320-

21   (internal     quotation       marks    omitted).       Based    on    Campbell’s

version of events giving rise to this litigation, he was in

handcuffs and restrained by McClinen when Smith hit him.                              If

this version of events is accepted, a trier of fact could easily

conclude that an Eighth Amendment violation occurred.

              Accordingly, in No. 10-6737, we dismiss in part and

affirm in part.         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.

                                                         No. 10-6643 DISMISSED
                                                 No. 10-6737 DISMISSED IN PART
                                                          AND AFFIRMED IN PART




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