                                   UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 18-6108


ANTWON G. WHITTEN,

                   Plaintiff - Appellant,

             v.

WILLIAM A. GUNTER, WRSP K-9 Correctional Officer (Strike Force); D.T.
COOK, WRSP Correctional Officer (Strike Force); A. LAWSON, WRSP
Correctional Officer,

                   Defendants - Appellees,

             and

HAROLD CLARKE, VA-DOC Director; DAVID ANDERSON, WRSP Major;
K.M. FLEMING, WRSP Lieutenant Institutional Investigator; B. J. RAVIZEE,
WRSP Institutional Ombudsman; MARCUS ELAM, Roanoke’s Regional
Ombudsman,

                   Defendants.



Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:16-cv-00195-EKD-RSB)


Submitted: November 29, 2018                            Decided: December 17, 2018


Before WILKINSON, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.
Antwon Whitten, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      On October 31, 2015, an altercation broke out between Virginia prisoner Antwon

G. Whitten and his cellmate, Craig Brown, when Whitten attacked Brown with a shard of

broken glass in their cell at Wallens Ridge State Prison (“WRSP”). Correctional Officers

William A. Gunter and D.T. Cook responded to Correctional Officer A. Lawson’s radio

call for assistance. In the course of the incident, Officer Gunter engaged his canine

partner on Whitten. The dog first grabbed Whitten by the head and then by the back,

causing substantial injuries. Whitten filed a 42 U.S.C. § 1983 (2012) complaint alleging,

inter alia, that Gunter used excessive force against him in violation of the Eighth and

Fourteenth Amendments and that Cook and Lawson violated his constitutional rights by

failing to intervene. The case proceeded to trial by jury and judgment was entered in

favor of Defendants. * Whitten appeals, challenging the district court’s order granting

judgment as a matter of law in favor of Cook and Lawson and the district court’s order

entered in accordance with the jury’s verdict finding for Gunter. We affirm.

      Whitten contends that the district court erred by granting judgment of a matter of

law, pursuant to Fed. R. Civ. P. 50, in favor of Defendants Cook and Lawson. “We

review the district court’s grant of a Rule 50 motion de novo, viewing the evidence in the

light most favorable to the party opposing the motion, . . . and drawing all reasonable

inferences in [his] favor.” A Helping Hand, LLC v. Balt. Cty., 515 F.3d 356, 365 (4th


      *
        Whitten’s claims against other defendants were dismissed before trial and are not
the subject of this appeal.


                                            3
Cir. 2008). “If, upon the conclusion of a party’s case, ‘a reasonable jury would not have

a legally sufficient evidentiary basis to find for the party on that issue,’ a court may grant

a motion from the opposing party for judgment as a matter of law.” Huskey v. Ethicon,

Inc., 848 F.3d 151, 156 (4th Cir.) (quoting Fed. R. Civ. P. 50(a)), cert. denied, 138 S. Ct.

107 (2017).     In making this determination, a court “may not make credibility

determinations or weigh the evidence,” and “it must disregard all evidence favorable to

the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150-51 (2000).

       Whitten asserted that Cook and Lawson were liable for his injuries because they

could have intervened and prevented Gunter from releasing the dog on Whitten. “To

succeed on a theory of bystander liability,” Whitten had to show that Cook and Lawson

“(1) knew that a fellow officer was violating [his] constitutional rights; (2) had a

reasonable opportunity to prevent the harm; and (3) chose not to act.” Stevenson v. City

of Seat Pleasant, 743 F.3d 411, 417 (4th Cir. 2014) (alterations and internal quotation

marks omitted). Neither Cook nor Lawson were in the cell or could even see into the cell

when Gunter released his dog on Whitten. Therefore, there was no evidence that they

could have intervened to stop Gunter from engaging his dog on Whitten. Thus, we

conclude that district court properly granted the motion for judgment as a matter of law in

favor of Lawson and Cook. In any event, as discussed below, the evidence ultimately

established that Gunter did not violate Whitten’s rights and therefore there was no

constitutional harm for Lawson and Cook to intervene to prevent.



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       Turning to the judgment in favor of Gunter, we will reverse a jury’s verdict only

when there is a complete absence of probative facts to support the jury’s conclusions.

Sherrill White Constr., Inc. v. South Carolina Nat’l Bank, 713 F.2d 1047, 1050 (4th Cir.

1983). The “verdict must stand if, taking the evidence in the light most favorable to the

[prevailing party], there [is] ‘any substantial evidence’ to support it.” Vodrey v. Golden,

864 F.2d 28, 30 n.4 (4th Cir. 1988) (quoting Evington v. Forbes, 742 F.3d 834, 835 (4th

Cir. 1984)). “Substantial evidence . . . is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion, even if different conclusions also might

be supported by the evidence.” Gibralter Sav. v. LDBrinkman Corp., 860 F.2d 1275,

1297 (5th Cir. 1988). Finally, in reviewing a jury verdict, we do not weigh the evidence

or review witness credibility. United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

       Whitten claims that Gunter used excessive force against him, in violation of his

Eighth and Fourteenth Amendment rights, when he released his dog on Whitten. “In the

prison context, [the Eighth Amendment] protects inmates from inhumane treatment and

conditions while imprisoned.” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (internal

quotation marks omitted). To state a cognizable claim for relief, a prisoner must show

that “the prison official acted with a sufficiently culpable state of mind (subjective

component) and [that] the deprivation suffered or injury inflicted on the inmate was

sufficiently serious (objective component).” Id. (internal quotation marks omitted).

       Where an inmate alleges that he was subjected to excessive force, the reviewing

court should focus primarily on the nature of the force used. Hill v. Crum, 727 F.3d 312,

320–21 (4th Cir. 2013). The inmate must demonstrate that, subjectively, the official

                                            5
applied force “maliciously and sadistically for the very purpose of causing harm” rather

than “in a good-faith effort to maintain or restore discipline.” Hudson v. McMillian, 503

U.S. 1, 6-7 (1992) (internal quotation marks omitted); see Wilkins v. Gaddy, 559 U.S. 34,

37 (2010) (per curiam). Factors to consider in making this determination are “(1) ‘the

need for the application of force’; (2) ‘the relationship between the need and the amount

of force that was used’; (3) the extent of any reasonably perceived threat that the

application of force was intended to quell; and (4) ‘any efforts made to temper the

severity of a forceful response.’” Iko, 535 F.3d at 239 (quoting Whitley v. Albers, 475

U.S. 312, 321 (1986)).

       Viewed in the light most favorable to Gunter, there was substantial evidence to

support a finding that the correctional officer released his dog on Whitten in a good faith

effort to restore discipline rather than maliciously and sadistically to cause harm.

Evidence presented at trial showed that Whitten and Brown were fighting and ignored

verbal commands to stop. Even two separate bursts of OC spray failed to stop the

fighting. Gunter testified that, when he looked in the cell, he observed the inmates

fighting and saw blood everywhere. Spotting a weapon in Whitten’s hand, Gunter alerted

the control room officer to open the cell door. As it opened, Gunter testified that Whitten

was on top of Brown, making stabbing motions towards Brown. Gunter stated that he

warned Whitten to drop the weapon, the situation was critical, and he quickly intervened

because Brown was under extreme risk of further injury or death. Therefore, Gunter

engaged the dog on Whitten. Gunter kept the dog on Whitten long enough to stop the

fight, get Brown safely out of harm’s way, and to get Whitten under control. Had he not

                                            6
engaged the dog on Whitten, Gunter believed Brown would have been killed. Based on

this testimony, the credibility and value of which we will not reweigh, Whitten cannot

show that there was a complete absence of probative facts to support the jury’s verdict.

       We have reviewed the other claims Whitten raised in his informal brief and

supplemental informal brief and have determined that they are without merit.

Accordingly, we affirm. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                              AFFIRMED




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