
USCA1 Opinion

	




          April 13, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2139                                   DONALD J. MCCLAIN,                                Plaintiff, Appellant,                                          v.                                GORDON CLARK, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Donald J. McClain on brief pro se.            _________________            Marc  J. Miller and Bernstein, Golder & Miller,  P.A. on brief for            _______________     _________________________________        appellee Gordon Clark.                                 ____________________                                 ____________________                      Per  Curiam.   Appellant  Donald  McClain  filed an                      ___________            action in the district  court under 42 U.S.C.    1983 against            Gordon Clark, a correctional officer, and John McGonigle, the            Middlesex  County  Sheriff.    McClain  alleged  the  use  of            excessive force  by Clark  in the  process of  moving McClain            from the jail in which he  was housed to a van in preparation            for  transportation to  court.   The  district court  granted            Clark's  motion for summary judgment.  In so doing, it relied            on Clark's affidavit to find that the force used by Clark was            reasonable and necessary to  fulfill his duties under Whitley                                                                  _______            v. Albers, 475 U.S. 312 (1986).               ______                      On appeal,  McClain first  complains that he  never            received the  report of a magistrate judge  which had earlier            recommended  the  denial  of  McClain's  motion  for  summary            judgment.   McClain also states that he was not notified that            the case  had  been  transferred from  Judge  Wolf  to  Judge            Hornby.    In  light  of  the  fact that  McClain  apparently            received notice  of Judge  Wolf's adoption of  the magistrate            judge's  recommendation,  it  is  hard  to  see  how  he  was            prejudiced.   Even if he  was deprived of  the opportunity to            file  objections to  the report,  he essentially  received an            equivalent opportunity when  he responded  to Clark's  motion            for summary judgment.   That  is, he wrote  a memorandum  and            submitted  his  medical records  and  the  affidavits of  two            witnesses to some of the events in question.                      Second, McClain argues that he met the requirements            for summary  judgment because  he suffered an  injury to  his            right hand when Clark smashed his  hand by stepping on it and            when Clark, in double-handcuffing him, placed the cuffs on so            tightly that circulation  was cut  off to his  hands.   Also,            prison officials allegedly applied excessive force in the way            they  carried him  to  the van.    McClain asserts  that  the            actions of  the prison officials, especially  Clark, were not            warranted because  he (McClain)  never presented a  threat to            any officers.                      To  prevail on  a  motion for  summary judgment,  a            moving party must "show that there is no genuine  issue as to            any material  fact and that the moving party is entitled to a            judgment as a matter of law."   Fed. R. Civ. P. 56(c).   Once            the  movant has met this  standard, the burden  shifts to the            non-moving party to  establish the existence of "at least one            issue that  is  both `genuine'  and  `material.'"   Kelly  v.                                                                _____            United States,  924 F.2d 355,  357 (1st Cir.  1991) (citation            _____________            omitted);  Fed.  R. Civ.  P. 56(e).    Here, as  Judge Hornby            noted, McClain did not  file his own affidavit.   However, he            did  submit  the  affidavits  of the  two  inmates;  he  also            submitted medical records.                      To show an Eighth Amendment violation when force is            used, an inmate must  demonstrate "the unnecessary and wanton            infliction of pain."  See Whitley, 475 U.S. at 320.  That is,                                  ___ _______                                         -3-            that the  force was not  "`applied in a good  faith effort to            maintain or restore discipline [but was used] maliciously and            sadistically  for the very purpose of causing harm.'"  Id. at                                                                   ___            320-21  (quoting Johnson  v. Glick, 481  F.2d 1028,  1033 (2d                             _______     _____            Cir.), cert. denied,  414 U.S. 1033 (1973)).   In considering                   ____________            this  question, courts must take into  account "the extent of            the  threat to the safety of staff and inmates, as reasonably            perceived  by the responsible  officials on the  basis of the            facts known to them. . . . "  Id. at 321.                                          ___                      Upon reviewing the affidavits of the two  prisoners            and  comparing  them  to  Clark's  affidavit,  the  following            undisputed scenario emerges.  There  was an argument in which            McClain refused  to let the prison officials  prepare him for            transportation to court  and in which he  denied the requests            that  he  be voluntarily  handcuffed  as  required by  prison            policy.  Although one of the inmates asserts in his affidavit            that McClain "appeared" not to be putting  up any resistance,            Clark nonetheless  forced McClain onto  a table with  a night            stick.  However, this inmate also states that he (the inmate)            was taken  out to  the van immediately  after this  occurred.            Thus, he did not see, nor  did the other inmate claim to see,            what  happened next when Clark  put the leg  irons on McClain            and began patting down McClain.   Because McClain claims that            Clark inflicted  the force (smashing his  hand and tightening            the  handcuffs) during  this period  of time,  we  think that                                         -4-            Clark's version of what happened in the course of the ensuing            process remains  uncontradicted.  That is,  that McClain, due            to his  resistance and  combativeness, presented a  threat to            Clark which required the use of force by Clark.                      Once this is established, the question then becomes            whether  the   force  employed  was  used   "maliciously  and            sadistically for  the very  purpose of  causing harm" or,  as            Clark asserts in his  affidavit, in a "good faith"  effort to            keep McClain in  custody and  under control.   "The focus  of            this  standard  is  on  the  detention  facility   official's            subjective  intent to punish."  Valencia v. Wiggins, 981 F.2d                                            ________    _______            1440,  1449 (5th Cir.), cert. denied, 113 S. Ct. 2998 (1993).                                    ____________            Further, the  Whitley Court recognized that  deference should                          _______            be  accorded  prison  officials  in the  choice  and  use  of            practices they believe  are necessary  to maintain  security.            See 475 U.S. at 321-22.            ___                      Given the  situation facing Clark  -- that  McClain            had  to be transported to  court but was  refusing to proceed            voluntarily  -- Clark  reasonably could  have  perceived that            some  force   would  be  needed  to   accomplish  this  goal.            Moreover,  once  McClain   became  combative,  and  therefore            potentially  dangerous, one  way to  subdue and  keep McClain            from  hurting  others  was  by  the  use  of  leg  irons  and            handcuffs.  In the  absence of any evidence to  the contrary,            Clark's  assertion that, based on  the facts then before him,                                         -5-            he  acted in good faith during  this process must be taken as            true.  See Whitley, 475 U.S. at 321.                   ___ _______                      Because  the use  of  force in  this  case was  not            constitutionally  excessive,  the  alleged  injuries  McClain            suffered become  irrelevant.   We therefore need  not address            McClain's claim  that Clark  committed perjury by  stating in            his affidavit that McClain  had not received any "significant            injury."                      The judgment of the district court is affirmed.                                                            ________                                         -6-
