                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-10-2000

Fuentes v Wagner
Precedential or Non-Precedential:

Docket 99-1062




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Filed March 10, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1062

LUIS FUENTES,

       Appellant

v.

WAGNER, WARDEN; KONEMANN,
CORRECTIONAL OFFICER; KLEEMAN, CORRECTIONAL
OFFICER; DONATO, CORRECTIONAL OFFICER; BROWN,
SERGEANT; WERST, ASSISTANT WARDEN, BERKS
COUNTY

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civil Action No. 96-CV-03251)
United States Magistrate Judge: Hon. M. Faith Angell

Argued: December 15, 1999

Before: MANSMANN, GREENBERG and McKEE,
Circuit Judges

(Filed: March 10, 2000)




       STEPHEN D. BROWN, ESQ.
       CAROLYN H. FEENEY, ESQ.
       EVERETT M. CLAYTON, ESQ.1
        (Argued)
       Dechert, Price & Rhoads
       4000 Bell Atlantic Tower
       1717 Arch Street
       Philadelphia, PA 19103
       Attorneys for Appellant

       DANIEL J. DIVIS, ESQ.
       MARGARET A. McALLISTER, ESQ.
        (Argued)
       German, Gallagher & Murtagh
       The Bellevue
       200 South Broad Street
       Suite 500
       Philadelphia, PA 19102
       Attorneys for Appellees
OPINION OF THE COURT

McKEE, Circuit Judge.

Luis Fuentes appeals a judgment that was entered for the
defendant corrections officers and prison officials in this
suit under 42 U. S. C. S 1983. The suit arose from an
incident that occurred in the Berks County Prison where
Fuentes was detained while awaiting sentencing on
outstanding federal charges. Fuentes alleged a cause of
action for excessive force under the Eighth and Fourteenth
Amendments, a substantive due process claim for cruel and
unusual punishment under the Eighth and Fourteenth
Amendments, a procedural due process claim under the
_________________________________________________________________

1. Mr. Fuentes was granted in forma pauperis status, and counsel agreed
to represent him pro bono. We express our appreciation for the service
counsel provided the court, and the quality of their advocacy on behalf
of Mr. Fuentes.

                               2


Fourteenth Amendment, and state law claims for assault
and battery, and false imprisonment.2

Cross-motions for summary judgment were eventually
filed, and the Magistrate Judge to whom the matter had
been assigned granted summary judgment in favor of the
prison officials on Fuentes' substantive due process claim,
but denied summary judgment on the remaining claims.
Those remaining claims then proceeded to trial, and a jury
returned a verdict in favor of the defendants. Fuentes' post-
trial motions were denied, and this appeal followed. 3 We will
affirm.

I. BACKGROUND

In December of 1995, Fuentes was being housed in the
behavioral adjustment unit ("BAU") of the Berks County
Prison awaiting sentencing on federal drug charges to
which he had previously pled guilty. His cell was typical of
the cells in the BAU. It measured approximately 6 by 10
feet and contained only a sink, a toilet, and a cement slab.

On December 28, 1995, the inmates in the BAU were not
allowed their one-hour exercise period outdoors because of
inclement weather. Instead, they were individually released
from their cells to exercise in the hallway immediately
outside their respective cells. After another inmatefinished
exercising, Fuentes began kicking his own cell door and
yelling for a Correctional Officer ("CO"). 4 CO Konemann and
CO Kleeman came to Fuentes' cell, and Fuentes complained
that another inmate had urinated into Fuentes' cell. Neither
Konemann nor Kleeman saw any urine on Fuentes' cell
floor. However, Kleeman did notice some wetness on the
door and the floor outside of Fuentes' cell.
_________________________________________________________________

2. Fuentes filed a pro se complaint on January 11, 1996. Thereafter, he
was granted ifp status and counsel was appointed to represent him. A
first amended complaint was filed on February 28, 1997, and a second
amended complaint was filed on November 14, 1997.
3. All parties consented to have the Magistrate Judge conduct the
proceedings under 28 U. S. C. S 636(c)(1). Fuentes retained the right to
appeal directly to us under 28 U. S. C. S 636(c)(3).

4. Fuentes knew that kicking his cell door was a violation of the rules of
the BAU.

                               3


Policy requires that a CO handcuff an inmate who is
housed in the disciplinary unit before entering his cell.
Accordingly, Konemann and Kleeman told Fuentes to
extend his hands through the food slot of his cell door so
that they could handcuff him and enter his cell. Fuentes
complied, and was handcuffed. The COs entered and told
Fuentes they were going to strip his cell because he had
kicked his cell door.5 However, as Konemann began
removing sheets from Fuentes' bed in an effort to strip the
cell, Fuentes grabbed the sheets and a struggle ensued. The
parties offer different versions of exactly what happened
next.

According to the defendants, Fuentes swung at
Konemann's head with his handcuffed fists after
unsuccessfully trying to grab the sheets. Konemann stated
he saw Fuentes' swing, and that he pushed Fuentes
backwards. When Fuentes moved back toward Konemann,
Kleeman stepped forward and wrestled Fuentes to thefloor.
Fuentes was then face down on the cell floor with his
handcuffed arms beneath him. Kleeman was partially on
top of Fuentes as Konemann assisted in holding Fuentes
down. According to the defendants, Fuentes was combative
and was trying to free himself as Konemann and Kleeman
tried to control him.

CO Donato arrived shortly after Konemann and Kleeman
began stripping the cell, but Donato left to get leg shackles
and to call for assistance. After Donato retrieved the leg
shackles she returned with several other COs, and the
shackles were fastened around Fuentes' legs. Sergeant
Brown, a supervising CO, did not enter Fuentes' cell, but
he did hear Fuentes yelling at Kleeman and Konemann.
Donato told Brown that Konemann and Kleeman had been
stripping Fuentes' cell when Fuentes swung at Konemann.
Brown then left to obtain permission to place Fuentes in a
restraint chair. Permission was granted by Assistant
_________________________________________________________________

5. Cell stripping is a procedure which may be used when an inmate is
causing a disturbance. It consists of removing from the cell all items
except the clothes on the inmate's back, his legal papers and his
toothbrush. For the first violation, the cell is stripped for 24 hours.
For

each subsequent infraction, an additional 24 hours is added.

                               4


Warden, who authorized use of the restraint chair for eight
hours. Fuentes' civil rights claim is based upon the use of
that restraint chair and his allegation that Konemann and
Kleeman used excessive force during the initial
confrontation in his cell.6

Fuentes was no longer physically resisting when Brown
returned with permission to use the restraint chair.
However, Kleeman and Konemann were still holding
Fuentes down, and Fuentes was threatening to "get"
Konemann. Fuentes was then carried from his cell to a
nearby cell where he was placed in the restraint chair. He
did not resist physically being placed in the chair, though
he did not cooperate.

With regard to the initial confrontation in Fuentes' cell,
Fuentes alleged that Konemann and Kleeman threw him to
the floor and beat him, and that Kleeman smeared his hand
all over Fuentes' face. Fuentes denied trying to strike
Konemann or threatening him. Fuentes insisted that he
only asked Kleeman and Konemann why they were hitting
him, and he claimed to have remained still from the time he
was beaten until the time he was placed in the restraint
chair. Kleeman admitted that Fuentes was no longer a
threat to himself or anyone else once his hands were cuffed
and his legs shackled. From the time Fuentes was removed
from his cell to the time he was placed in the restraint
chair, he was neither resisting nor physically combative.
Fuentes was not given an opportunity to explain or defend
any of his actions prior to being placed in the chair.
_________________________________________________________________

6. The restraint chair at Berks County Prison is the "Pro-straint Violent
Prisoner Chair." The back of the chair is angled back at a 45#DE# angle.
An

inmate is placed in the chair with his arms handcuffed behind his back
and his legs shackled. A restraint belt is fastened across the inmate's
lap, and two more restraint belts are placed across his chest while
another restraint belt secures his ankles. At Berks County Prison, it is
standard operating procedure to shackle an inmate's legs, as well as
cuffing his wrists. The handcuffs that are used are double-locked so they
cannot loosen or tighten more than when initially set. The prison has
three restraint chairs, and they are on wheels so that they can be moved
between housing units. They are used in the female unit, the disciplinary
unit and the mental health unit. The chairs are not used on general
population inmates.

                               5


Fuentes' confinement in the restraint chair was
consistent with the institution's policy. COs checked him at
fifteen minute intervals and he was released every two
hours for a ten minute period of stretching, exercise, and
use of the toilet. In addition, he was given a meal and seen
by the medical staff at the end of the first two hour interval.
The parties disputed whether Fuentes made any verbal
threats during his first release period. Fuentes denied doing
so, however, Konemann said that Fuentes was still
threatening him and saying that he would "get" Konemann
when he got out on the street.

During the second release period, which came at the end
of four hours, Fuentes told Konemann "he wasn't going to
get away with it, that [Fuentes] was going to see him sooner
or later . . . ." Konemann interpreted this as a threat.
However, Fuentes claimed that he only meant that he was
going to sue Konemann.

When the third release period arrived, Fuentes had
stopped making threats. He was finally released at the end
of eight hours and examined by a staff nurse, as dictated
by policy. She noted that Fuentes complained of pain in his
right lower rib cage, but she observed no injuries with the
exception of small bruises or swelling on both wrists.

On December 29, 1995, Fuentes was brought before the
prison disciplinary board for a hearing on charges of
assault/fighting/horseplay, threats, refusal of orders, and
disturbance. He was given an opportunity to make a
statement. The assault charge was dismissed but the board
found him guilty of threats, refusal of orders and
disturbance. Sanctions in the form of loss of all earned time
credit and thirty days segregation were imposed.

Fuentes claimed that being in the restraint chair for eight
hours resulted in loss of feeling in his hands and feet, cuts
on his wrists and ankles where he had been handcuffed
and shackled, leg cramps, discomfort in his arms,
restricted breathing, and back pain.
II. DISCUSSION

Fuentes argues that the Magistrate Judge erred by: (1)
denying his motion for judgment as a matter of law on his

                                6


procedural due process claim; (2) granting summary
judgment in favor of the defendants on his substantive due
process claim; and (3) instructing the jury improperly on
his excessive force claim.

A. The Procedural Due Process Claim.

Fuentes alleged that his eight hour confinement in the
restraint chair violated the Fourteenth Amendment of the
United States Constitution. The Magistrate Judge denied
cross-motions for summary judgment on the procedural
due process claim after finding that "the evidence
demonstrates a genuine issue of material fact as to whether
Mr. Fuentes was placed in the restraint chair for punitive
reasons or security reasons. . . ." Op. at 15. After the jury
found against him on his procedural due process claim,
Fuentes moved for judgment as a matter of law. However,
the Magistrate Judge denied that motion. Fuentes claims
that was error.

We exercise plenary review over the denial of a motion for
judgment as a matter of law, and we apply the same
standard that the District Court should have used.
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d
Cir. 1993). A motion for judgment as a matter of law
"should be granted only if, viewing the evidence in the light
most favorable to the nonmovant . . . there is insufficient
evidence from which a jury could reasonably find[for the
nonmovant]. [We] may not weigh the evidence. . . The
question is not whether there is literally no evidence
supporting the party against whom the motion is directed
but whether there is evidence upon which the jury could
properly find a verdict for that party." Id . A jury must
resolve any factual conflicts, not a court. Bonjorno v. Kaiser
Aluminum & Chem. Corp., 752 F.2d 802, 811 (3d Cir.
1985).

When Fuentes was placed in the restraint chair he was a
convicted inmate awaiting sentencing. His status under the
Constitution was therefore that of a pretrial detainee.7 In
_________________________________________________________________

7. Before the Magistrate Judge, the defendants conceded that for
purposes of his S 1983 claim, Fuentes was to be regarded as a pretrial

                                7
Cobb v. Aytch, 643 F.2d 946, 962 (3d Cir. 1981), we
clarified the legal status of convicted, but unsentenced,
inmates. We stated:

       The trial judge, in fashioning relief, drew a distinction
       between pretrial detainees and convicted but
       unsentenced inmates. He concluded that `the
       conviction alone appears to extinguish any `liberty'
       interest formally derived from the fourteenth
       amendment.' We disagree. The right to remain at liberty
       continues until a court pronounces a judgment of
       sentence, although after a jury has pronounced a guilty
       verdict the court may insist upon greater assurance that
       a defendant will submit to sentence.

(emphasis added). Given Fuentes' status as a pretrial
detainee under the Fourteenth Amendment, he has

       federally protected liberty interests that are different in
       kind from those of sentenced inmates. Unlike
       sentenced prisoners, who . . . must look to state law
       for the protection of their personal liberties, pre-trial
       detainees have liberty interests firmly grounded in
       federal constitutional law.

Id. at 957.8

Our analysis of Fuentes' procedural due process claim is
governed by Bell v. Wolfish, 441 U. S. 520 (1979).9 There,
the Supreme Court wrote:
_________________________________________________________________

detainee. Op. at 9 n.17. In this appeal, the defendants argue that
Fuentes' status is the same as a sentenced inmate. See Appellees' Br. at
13, 20. We reject that argument because it contravenes the concession
made before the Magistrate Judge, and because it is simply wrong. See
Bell v. Wolfish, 441 U.S. 520, 538 (1979).

8. Fuentes' liberty interests are grounded in the Fourteenth Amendment
because his allegations are against state actors as he was confined in a
county prison.

9. The defendants, although discussing Bell v. Wolfish, rely, in part, on
Sandin v. Conner, 515 U. S. 472 (1995), in support of their argument
that Fuentes was not punished without due process of law. In Sandin,
the Court held that liberty interests protected by the Due Process Clause
"will be generally limited to freedom from restraint which, while not

                               8


       [I]n evaluating the constitutionality of conditions or
       restrictions of pretrial detention that implicate only the
       protection against deprivation of liberty without due
       process of law, we think the proper inquiry is whether
       those conditions amount to punishment of the
       detainee.

Id. at 535. "[A] detainee may not be punished prior to an
adjudication of guilt in accordance with due process of
law." Id. However, "[o]nce the Government has exercised its
conceded authority to detain a person pending trial, it
obviously is entitled to employ devices that are calculated
to effectuate this detention." Id. at 537. Thus, "[r]estraints
that are reasonably related to the institution's interest in
maintaining jail security do not, without more, constitute
unconstitutional punishment, even if they are
discomforting. . . ." Id. at 540. Obviously, "ensuring
security and order at the institution is a permissible
nonpunitive objective, whether the facility houses pretrial
detainees, convicted inmates, or both." Id. at 561.
Consequently, "whether . . . restrictions and practices
constitute punishment in the constitutional sense depends
on whether they are rationally related to a legitimate
nonpunitive government purpose and whether they appear
excessive in relation to that purpose." Id. Thus, there is a
"distinction between punitive measures that may not
constitutionally be imposed prior to a determination of guilt
and regulatory restraints that may." Id.

       [We] must decide whether the disability is imposed for
       the purpose of punishment or whether it is but an
       incident of some other legitimate governmental
       purpose. Absent a showing of an expressed intent to
       punish on the part of detention facility officials, that
       determination generally will turn on whether an
       alternative purpose to which [the restriction] may
_________________________________________________________________

exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause in its own force, nonetheless
imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life." 515 U. S. at 484. However, Sandin
does not apply here. Sandin concerned punishment of a sentenced
prisoner, and therefore required a completely different analysis.

                               9


       rationally be connected is assignable for it, and
       whether it appears excessive in relation to the
 659alternative purpose assigned [to it]. Thus, if a

       particular condition or restriction of pretrial detention
       is reasonably related to a legitimate governmental
       objective, it does not, without more, amount to
       `punishment.' Conversely, if a restriction or condition is
       not reasonably related to a legitimate goal--if it is
       arbitrary or purposeless--a court permissibly may infer
       that the purpose of the governmental action is
       punishment that may not constitutionally be inflicted
       upon detainees qua detainees.

Id. at 538-39.

Fuentes has not clearly established that officials used the
restraint chair as a means of "punishing" (as opposed to
controlling) him. Accordingly, we must determine if this
particular restriction, which may appear to be punitive, was
really an incident of a legitimate nonpunitive objective. Id.
at 539 n.20. "[A]bsent a showing of intent to punish, a
court must determine if a particular restriction or
condition, which may on its face appear to be punishment,
is instead but an incident of a legitimate nonpunitive
governmental objective." Id. "Retribution and deterrence are
not legitimate nonpunitive governmental objectives." Id.

Fuentes argues that "a reasonable jury could only have
concluded that the defendants confined [him] in the
restraint chair -- and kept him there for eight long
hours -- to punish him." Appellant's Br. at 38-39. He
therefore claims that the Magistrate Judge erred in denying
his motion for judgment as a matter of law.

Clearly, there is evidence in this record from which a
reasonable jury could conclude that use of the restraint
chair was punishment. Sergeant Brown testified that the
chair is used in the disciplinary unit for behavior
modification purposes. Warden Wagner testified that the
restraint chair is used to abate an inmate's behavior, and
that it is used for behavior modification and control.
Perhaps most significantly, he also testified that there is
nothing the inmate can do to affect the amount of time he
will remain in the chair once the inmate is placed in it.

                               10


However, there is also evidence from which a reasonable
jury could conclude that Fuentes was placed in the
restraint chair to quell a disturbance and restore the order
and security of the institution. Kleeman testified that the
restraint chair is used to handle an aggressive inmate who
is causing harm to himself or others. Kleeman and
Konemann both testified that Fuentes kicked his cell door
and swung his handcuffed hands at Konemann's head.
Konemann testified that although Fuentes was not
physically aggressive when released from the chair during
the first and second rest periods, Fuentes did continue to
make threats.
Given this conflicting evidence, we disagree with Fuentes'
contention that a reasonable jury could only conclude that
use of the chair was punitive. The evidence was sufficient
to allow a jury to conclude that he was placed in the
restraint chair to stop his disruptive behavior and maintain
prison order and security. Accordingly, the Magistrate
Judge did not err in denying Fuentes' motion for judgment
as a matter of law. "Conflicting evidence which could
reasonably lead to inconsistent conclusions will not justify"
a judgment as a matter of law. Fireman's Fund Ins. Co. v.
Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir. 1976). "It is
the function of the trier of fact alone, the jury in this
instance, to evaluate the evidence and to draw inferences
therefrom." Id.

B. The Substantive Due Process Claim.10

Fuentes alleged that the use of the restraint chair
violated his substantive due process rights under the
Fourteenth Amendment, and constituted cruel and unusual
punishment under the Eighth Amendment as a matter of
law. However, the basis of his claim is elusive. The
Magistrate Judge concluded that Fuentes was claiming that
the use of the restraint chair is unconstitutional under any
circumstances under the Eighth Amendment. See Op. at 15
_________________________________________________________________

10. We exercise plenary review over the grant or denial of a motion for
summary judgment, applying the same standard that the district court
should have used in the first instance. Olson v. General Elec. Aerospace,
101 F.3d 947, 951 (3d Cir. 1996).

                               11


("[Fuentes] contends that the use of the restraint chair as
a means of corporal punishment is `cruel and unusual' and
violates the Eighth Amendment."). However, in his brief to
us, Fuentes conflates his substantive due process claim
into his procedural due process claim by arguing that the
central issue with respect to both is whether the use of the
chair constituted punishment. The appellees describe
Fuentes argument before us as follows:

       [Fuentes] appears to now contend that the district
       court should have considered only whether [he] was
       punished, not whether the alleged punishment was
       cruel and unusual. [Thus, Fuentes'] argument with
       respect to the district court's ruling on [the substantive
       due process claim] relating to claims of cruel and
       unusual punishment is confusing at best.

See Appellees' Br. at 9.
Fuentes argues that the Magistrate Judge incorrectly
analyzed his substantive due process claim under the
Eighth Amendment rather than under the Fourteenth
Amendment. He correctly asserts that his claim is governed
by the Fourteenth Amendment guarantee of due process,
and not the Eighth Amendment's prohibition against cruel
and unusual punishment because he had not been
sentenced when the incident occurred.11 Under the
Fourteenth Amendment, a pretrial detainee is entitled "at a
minimum, [to] no less protection" than a sentenced inmate
is entitled to under the Eighth Amendment. Colburn v.
Upper Darby Township, 838 F.2d 663, 668 (3d Cir. 1988).
Fuentes claims that "the district court never even
considered the amount of additional substantive protection
_________________________________________________________________

11. "The Cruel and Unusual Punishments Clause was designed to
protect those convicted of crimes and consequently the Clause applies
only after the State has complied with the constitutional guarantees
traditionally associated with criminal prosecutions." Whitley v. Albers,
475 U. S. 312, 318 (1986)(citation and internal quotations omitted).
Thus, its protections do not apply until "after conviction and sentence."
Graham v. Connor, 490 U. S. 386, 392 n.6 (1989). The clause, and
indeed the entire Eighth Amendment, is made applicable to the states
through the Fourteenth Amendment. Robinson v. California, 370 U. S.
660 (1962).

                               12


to which [he] was entitled" under the Fourteenth
Amendment by virtue of his status as a pretrial detainee.
Appellant's Br. at 18-19.

In Kost v. Kozakiewicz, 1 F.3d 176, 188 n.10 (3d Cir.
1993), we noted that "pretrial detainees. . . are entitled to
at least as much protection as convicted prisoners, so the
protections of the Eighth Amendment would seem to
establish a floor of sorts. It appears that no determination
has as yet been made regarding how much more protection
unconvicted prisoners should receive." Fuentes contends
that, as an unsentenced inmate, he was entitled to be free
from any punishment. However, that very issue was before
the jury with respect to Fuentes' procedural due process
claim, and, as we have indicated, the jury's determination
in favor of the defendants on that issue was supported by
sufficient evidence. Accordingly, even if the Magistrate
Judge had applied a Fourteenth Amendment standard,
Fuentes would not have prevailed at trial.

The Eighth Amendment protects against infliction of
"cruel and unusual punishment." However, "not every
governmental action affecting the interests or well-being of
a prisoner is subject to Eighth Amendment scrutiny."
Whitley v. Albers, 475 U. S. 312, 319 (1986)."After
incarceration, only the unnecessary and wanton infliction
of pain constitutes cruel and unusual punishment
forbidden by the Eighth Amendment." Id. (citation and
internal quotations omitted). "It is obduracy and
wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and
Unusual Punishments Clause, whether that conduct occurs
in connection with establishing conditions of confinement,
supplying medical needs, or restoring official control over a
tumultuous cellblock." Id.

Resolution of an Eighth Amendment claim therefore
"mandate[s] an inquiry into a prison official's state of
mind." Wilson v. Seiter, 501 U. S. 294, 299 (1991). Two
considerations define that inquiry. We must first determine
if the deprivation was sufficiently serious to fall within the
Eighth Amendment's zone of protections. Id. at 298. If not,
our inquiry is at an end. However, if the deprivation is
sufficiently serious, we must determine if the officials acted

                               13


with a sufficiently culpable state of mind. Id . In other
words, we must determine if they were motivated by a
desire to inflict unnecessary and wanton pain."What is
necessary to establish an `unnecessary and wanton
infliction of pain'. . . varies according to the nature of the
alleged constitutional violation." Hudson v. McMillian, 503
U. S. 1, 5 (1992).

When excessive force is alleged in the context of a prison
disturbance, the subjective inquiry is "whether force was
applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm."
Id. at 7. The objective inquiry is whether the inmate's injury
was more than de minimis. Id. at 9-10.

When an Eighth Amendment claim arises in the context
of a challenge to conditions of confinement, we must
determine if prison officials acted with "deliberate
indifference" to the inmate's health. Farmer v. Brennan, 511
U. S. 825, 837 (1994).12 The objective inquiry is whether the
inmate was "denied the minimal civilized measure of life's
necessities." Hudson, 503 U. S. at 9.

Fuentes contends that his substantive due process claim
does not neatly fit into either the "excessive force" category
or the "conditions of confinement" category. Nonetheless, he
argues, not only that the Magistrate Judge erred by
granting summary judgment to the prison officials on his
hybrid substantive due process claim, but also that he
should have been granted summary judgment on that
claim. He argues in the alternative that the claim should at
least have been submitted to the jury. We disagree.
_________________________________________________________________

12. In Farmer v. Brennan, the Court finally defined "deliberate
indifference," which first appeared in Estelle v. Gamble, 429 U. S. 97,
104 (1976). The Court required a showing that the prison official was
"subjectively aware of the risk." 511 U. S. at 829. It wrote: "We hold
. . . that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference." Id. at 837.

                               14


Fuentes' due process claim is limited to use of the
restraint chair. It does not encompass the force initially
used to subdue him, or to place him in the chair.
Accordingly, whether analyzed as an excessive force claim
or a conditions of confinement claim, Fuentes had to
demonstrate that the prison officials had a "sufficiently
culpable state of mind," to establish that use of the
restraint violated the Eighth Amendment. It is obvious that
prison officials were not "deliberately indifferent" to his
health or well-being in employing the restraint chair, and a
conditions of confinement analysis therefore requires little
discussion.

It is undisputed that the prison policy for the use of the
restraint chair was followed here. Accordingly, Fuentes was
not kept in the chair any longer than had been authorized,
his physical condition was checked every 15 minutes, and
he was released every two hours for 10 minutes to allow
stretching, exercise, and use of the toilet. He was given
food, and he was examined by a nurse at the end of the
eight hour confinement.13

Moreover, even if we assume that the injuries Fuentes
alleges were sufficiently serious to establish an Eighth
Amendment violation, there is no evidence that prison
officials placed him in the chair "maliciously and
sadistically to cause harm." Fuentes argues that the prison
officials' conduct was malicious and sadistic because (1)
there was no need to use the restraint chair; (2) the
restraint chair was much too severe a response under the
circumstances; (3) the prison officials did not perceive him
as an immediate threat when they placed him in the chair;
and (4) the prison officials made no effort to temper the
severity of their response even though it was clear that he
posed no threat to institutional security. Appellant's Br. at
30. However, even if we concede each of these assertions,
Fuentes has established at most that prison officials over-
reacted to the disturbance that he caused. Given the
totality of the circumstances surrounding use of the
_________________________________________________________________

13. These same factors that establish that the prison officials were not
deliberately indifferent also establish that Fuentes was not "denied the
minimal civilized measure of life's necessities."

                               15


restraint chair here, any such over-reaction would still fall
short of supporting a finding that prison officials acted
"maliciously and sadistically to cause harm."

Consequently, the Magistrate Judge did not err by
granting summary judgment in favor of the defendants on
Fuentes' substantive due process claim.

C. The Jury Instructions on Excessive Force. 14

Fuentes alleged that Konemann and Kleeman used
excessive force in violation of the Fourteenth Amendment.
Fuentes also alleged that Donato was liable because she
observed the use of excessive force and failed to intervene
with respect to the initial confrontation in his cell. Over
Fuentes' objection, the Magistrate Judge charged the jury
on excessive force as follows:

       [P]laintiff must show by a preponderance of the
       evidence, that one or more of the defendants inflicted
       unnecessary and wanton pain and suffering. You must
       decide whether the force applied was in a good faith
       effort to maintain or restore discipline, in which case,
       you must find that the defendants did not use
       excessive force, or whether the force applies (sic) was
       inspired by an unwise, excessive zeal, amounting to an
       abuse of official power, that shocks the conscience, in
       which case, you must find that one or more of the
       defendants did use excessive force.

Fuentes argues that this charge "compelled [him] to meet
a much higher burden than an unsentenced inmate is
required to meet in order to prove an excessive force claim."
Appellant's Br. at 47. He argues that the "objective
reasonableness" instruction he proposed should have been
given to the jury instead.15
_________________________________________________________________

14. We exercise plenary review in determining whether jury instructions
misstated an applicable legal standard. Parks v. AlliedSignal, Inc., 113
F.3d 1327, 1330 (3d Cir.1997).
15. Fuentes' proposed excessive force jury instruction reads:

       In order to prove that the defendants used excessive and
       unnecessary force, the plaintiff must prove by a preponderance of

                                16


However, Fuentes was not entitled to an "objective
reasonableness" instruction. The "objective reasonableness"
test has its constitutional foundation in the Fourth
Amendment and is properly applied in excessive force
claims arising from investigatory stops and/or arrests.
Graham v. Connor, 490 U. S. 386 (1989). The Court in
Graham specifically stated:

       Our cases have not resolved the question of whether
       the Fourth Amendment continues to provide
       individuals with protection against the deliberate use of
       force beyond the point at which arrest ends and
       pretrial detention begins, and we do not attempt to
       answer that question today. It is clear, however, that
       the Due Process Clause protects a pretrial detainee from
       the use of excessive force that amounts to punishment.

490 U. S. at 395 n.10 (citations omitted)(emphasis added).

Our conclusion that Fuentes was not entitled to an
"objective reasonableness" instruction does not, however,
completely meet Fuentes' claim of error. Fuentes' essential
point is that the instruction given to the jury was an Eighth
Amendment excessive force instruction applicable to
sentenced inmates and inapplicable to him. He argues that
his excessive force claim should have been analyzed under
the Bell v. Wolfish "conditions of confinement" standard
because he was a pretrial detainee. He insists that he was
not required to prove that he experienced "wanton pain and
suffering" or to establish that the application of force upon
him "was inspired by an unwise, excessive zeal, amounting
_________________________________________________________________

       the evidence: (1) that the plaintiff suffered some harm, (2) that
the
       harm resulted directly from the use of force that was clearly
       excessive in relation to any need for the use of force, and (3)
that
the
       excessiveness of the force was objectively unreasonable in light of
       the facts and circumstances at the time.

       Some of the factors you may consider in determining whether the
       defendants used excessive force are: (1) the extent of the injury
       suffered, (2) the need for the use of force, (3) the relationship
       between that need and the amount of force used, (4) the threat
       reasonably perceived by the prison guards involved; and (5) any
       efforts made to temper the severity of the forceful response.

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to an abuse of official power" or to prove that the conduct
of Konemann, Kleeman and Donato "shocked the
conscience."

However, we agree with the contrary analysis in Valencia
v. Wiggins, 981 F.2d 1440 (5th Cir. 1993). There, the court
also addressed a pretrial detainee's excessive force claim
against a prison guard. The claim arose from a prison
disturbance. The court initially looked to Bell v. Wolfish for
guidance in determining the standards to be applied.
However, it found that Bell, while working"well for claims
of improper conditions or restrictions, . . . does not lend
itself to analysis of claims of excessive force in controlling
prison disturbances." Id. at 1446. The court reasoned:

       In Bell, the Court stated that the government must be
       able to take steps to maintain security and that
       "[r]estraints that are reasonably related to the
       institution's interest in maintaining jail security do not,
       without more, constitute unconstitutional punishment
       . . . ." Bell further noted that there is no reason to
       distinguish between pretrial detainees and convicted
       inmates in reviewing challenged security practices
       because there is no basis to conclude that pretrial
       detainees pose any lesser security risk than convicted
       inmates.

       For these reasons, we conclude that excessive use of
       force claims by pretrial detainees should not be
       analyzed under Bell's conditions of confinement
       standard. Instead, we are guided by the standard
       announced in Whitley and Hudson. While these cases
       specifically addressed claims of excessive use of force
       brought by convicted prisoners, it is impractical to
       draw a line between convicted prisoners and pretrial
       detainees for the purpose of maintaining jail security.
       Moreover, the Court indicated in Hudson that many of
       its concerns in Whitley were not limited to Eighth
       Amendment claims but "arise whenever guards use
       force to keep order." It further observed that claims
       based on excessive force and claims based on
       conditions of confinement are different in kind.

       Therefore, when a court is called upon to examine the
       amount of force used on a pretrial detainee for the

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       purpose of institutional security, the appropriate
       analysis is that announced in Whitley and Hudson:
       whether the measure taken inflicted unnecessary and
       wanton pain and suffering depends on "whether force
       was applied in a good faith effort to maintain or restore
       discipline, or maliciously and sadistically for the very
       purpose of causing harm."

Id. Accordingly, we hold that the Eighth Amendment cruel
and unusual punishments standards found in Whitley v.
Albers, 475 U. S. 312 (1986) and Hudson v. McMillian, 503
U. S. 1 (1992), apply to a pretrial detainee's excessive force
claim arising in the context of a prison disturbance. We can
draw no logical or practical distinction between a prison
disturbance involving pretrial detainees, convicted but
unsentenced inmates, or sentenced inmates. Nor can
prison guards be expected to draw such precise distinctions
between classes of inmates when those guards are trying to
stop a prison disturbance.

Consequently, Fuentes' objections to having to prove
"wanton pain and suffering" and "an unwise excessive zeal,
amounting to an abuse of official power," were properly
overruled. We are not troubled by the court's instruction
requiring Fuentes to establish that the challenged force was
motivated by a desire to inflict "wanton pain and suffering."
That requirement is nothing more than a restatement of the
requirement that Fuentes establish that the force was
"inspired by an unwise, excessive zeal, amounting to an
abuse of official power." That requirement in turn amounts
to nothing more than the application of force "maliciously
and sadistically for the very purpose of causing harm."

However, Fuentes' objection to having to prove that the
prison guards' conduct "shocked the conscience," as
required by the instruction, is somewhat more troublesome.
Although "shocks the conscience" is a term of art in
Fourteenth Amendment substantive due process
jurisprudence, see Rochin v. California, 342 U. S. 165, 172-
73 (1952), our recent decisions suggest that the standard
may only apply to police pursuit cases. See Fagan v. City of
Vineland, 22 F.3d. 1296, 1306 (3d Cir. 1994); see also
Kneipp v. Tedder, 95 F.3d 1199, 1207-08 (3d Cir. 1996)
("We believe that the Fagan II shocks the conscience

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standard is limited to police pursuit cases. . . .").
Furthermore, in Valencia v. Wiggins, supra, the court
rejected the contention that a pretrial detainee bringing an
excessive force claim arising from a prison disturbance had
to demonstrate that the prison guards' conduct "shocked
the conscience."

Nonetheless, we believe that, in light of the Supreme
Court's decision in County of Sacramento v. Lewis, ___ U.
S. ___, 118 S. Ct. 1708 (1998), the "shocks the conscience"
standard is not inappropriate to an excessive force claim in
the context of a prison disturbance. Lewis involved a high
speed police chase of a motorcycle that ended in the death
of the passenger of the fleeing motorcycle. The parents of
the decedent sued under 42 U.S.C. S 1983 alleging that the
police conduct violated the constitutional rights of the
decedent. The Court's analysis of the police conduct
clarifies that the "shocks the conscience" standard of
culpability applies in those instances where the police
officer must instantaneously respond to a situation without
opportunity for reflection on his or her actions. 118 S. Ct.
at 1721.

In concluding that the "shocks the conscience" standard
applies to police pursuit cases, the Court analogized the
police officers' situation in a pursuit case to that of prison
officials who have to immediately respond to a violent
prison disturbance to restore and to maintain order and
security. Id. at 1720 ("The analogy to sudden police chases
(under the Due Process Clause) would be hard to avoid.").

Moreover, in Hudson v. McMillian, the Court noted that:

       the officials confronted with a prison disturbance must
       balance the threat unrest poses to inmates, prison
       workers, administrators, and visitors against the harm
       inmates may suffer if guards use force. . . . Whether
       the prison disturbance is a riot or a lesser disruption,
       corrections officers must balance the need to maintain
       or restore discipline through force against the risk of
       injury to inmates. Both situations may require prison
       officials to act quickly and decisively. Likewise, both
       implicate the principle that [p]rison administrators
       . . . should be accorded wide-ranging deference in the

                               20


       adoption and execution of policies and practices that in
       their judgment are needed to preserve internal order
       and discipline and to maintain institutional security. In
       recognition of these similarities, we hold that whenever
       prison officials stand accused of using excessive
       physical force in violation of the Cruel and Unusual
       Punishments Clause, the core judicial inquiry is . ..
       whether force was applied in a good-faith effort to
       maintain or restore discipline, or maliciously and
       sadistically to cause harm.
Hudson, 503 U.S. at 6-7 (citations and internal quotation
marks omitted).

Here, Kleeman, Konemann and Donato were faced with
Fuentes' disruptive and violent behavior for which they
were not to blame. They could not take time to reason
through various options to determine the most appropriate
response. Rather, they had to quickly respond in order to
quell the disturbance Fuentes was creating, and minimize
the possibility of an escalating disruption inside the prison.
Under those circumstances, we believe that the "shocks the
conscience" test that the Supreme Court has utilized in
analogous situations, including high speed chases, is the
appropriate gauge of the conduct. Accordingly, wefind no
error in the Magistrate Judge's jury instruction.

III. CONCLUSION.

For all of the reasons set forth above, we will affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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