UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL R. MCCREIGHT, SR.,
Plaintiff-Appellant,

v.

WILLIAM DAVIS, Warden; VICTOR
                                                                     No. 97-7826
JOHNSON, Lieutenant; SERGEANT
SESSIONS; CORRECTIONAL OFFICER
SALMOND; CORRECTIONAL OFFICER
SEAWARD; BRYAN, R. N.; JOE, R. N.,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Patrick Michael Duffy, District Judge.
(CA-97-1835-23AK-6)

Submitted: November 18, 1998

Decided: January 13, 1999

Before MICHAEL and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per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

_________________________________________________________________

COUNSEL

Michael R. McCreight, Sr., Appellant Pro Se. Robert Thomas King,
WILLCOX, MCLEOD, BUYCK & WILLIAMS, P.A., Florence,
South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael McCreight, a South Carolina inmate, appeals from the dis-
trict court's order granting summary judgment in favor of the Defen-
dants on his claims brought under 42 U.S.C.A. § 1983 (West 1994 &
Supp. 1998). We have reviewed the record and the district court's
opinion and find no reversible error in the denial of relief on
McCreight's claim that the Defendants used excessive force against
him when they sprayed him with mace and placed him in handcuffs
and leg irons. Accordingly, we affirm the denial of relief on this claim
on the reasoning of the district court. (McCreight v. Davis, No. CA-
97-1835-23AK-6 (D.S.C. Dec. 5, 1997)).

I.

According to McCreight, on January 17, 1996, a correctional offi-
cer gave him a pen with which to sign certain documents. McCreight
refused to return the pen and then flushed it down the toilet in view
of the officer. Later, Defendant Sessions arrived at McCreight's cell
demanding to know the whereabouts of the pen and then sprayed
mace "into my face, on my body, into my cell on my bed, walls, etc.
and told me something to the effect that `he'd been waiting a long
time to teach my sorry-white-ass a lesson.'" Sessions returned to
McCreight's cell a short time later and "told me to come to my cell
door to be restrained. I came to the door to be restrained and didn't
say or do anything towards Srgt. Sessions." When the officers came
to put McCreight into restraints, he "sat down on[his] bed to show
that I posed no threat, and even tried to lay down face-down when
staff entered" his cell.

McCreight alleged that Officers Salmond, Seaward, and "two or
three" others entered his cell and slammed his head into a brick wall
and brick bed, squeezed his testicles, and bent and twisted his back.

                    2
The videotape of the incident included in the record shows the offi-
cers entering McCreight's cell and placing him in handcuffs and leg
irons on his bed. However, the camera's view is blocked part of the
time by the officers' backs. McCreight admitted that, when taken out
into the hall, he cursed, threatened and made racial remarks directed
at the guards. In response, Defendant Salmond "purposely tripped me
with a steel chain he had wrapped around my legs," causing
McCreight to strike his head against a wall and render him uncon-
scious. The videotape appears to corroborate this last allegation.

When he regained consciousness, McCreight claimed that the pain
in his back "was more severe than it had ever been in my life," but
that he was examined by prison nurses who told the guards that
McCreight did not need medical care. McCreight's medical records
included in the record show that he has a history of low back pain
caused by spinal stenosis and a bulging disc. He was then "dragged"
into the shower area, "stomped and kicked [in the] legs and stomach,"
and laid "face-down on the shower floor, hancuffed [sic] behind my
back, in leg shackels, in obvious pain." On the videotape, McCreight
can be heard repeatedly complaining of back pain and he is unable to
stand.

McCreight was then carried back to his cell where, he alleges,
Defendant Salmond and others kicked him and slammed his head
against a metal door frame and concrete floor. On the videotape,
McCreight can be heard screaming, but the camera's view is blocked
completely by one or more of the guards. McCreight was then
allowed to shower in his cell. After he showered, the Defendants
removed McCreight's clothing and placed him face-down on his
wooden bed frame, naked, in four-point restraints for four hours. Dur-
ing this time:

          Defendants and others kept coming to my cell door and
         threatening me, making lewd comments, telling me they
         were going to rape me up the anus and ass, putting keys
         against the door to make it seem they were entering my cell,
         laughing and whistling at me being spread-eagle and naked
         on [the] bed.

On the videotape, McCreight is never shown resisting the guards
in any way and is unconscious--or semi-conscious--for a good part

                    3
of the time. He is also unable to stand except for a brief period after
the shower, and he is holding his back, apparently in pain. The tape
stops at the point when he is put in the four-point restraints. After an
internal investigation, the use of four-point restraints was determined
to be "unfounded." McCreight claims that, as a result of further injury
to his back sustained during this incident, he has had surgery to
remove a ruptured disc and wears a back brace.

On these facts, the magistrate judge recommended granting sum-
mary judgment to the Defendants with respect to McCreight's exces-
sive force claim challenging the use of mace, handcuffs, and leg irons,
and denying their motion for summary judgment with respect to the
remaining claims. The district court disagreed with the magistrate
judge and found that the Defendants were entitled to summary judg-
ment as to all claims. The court found that, because McCreight's alle-
gations of beatings were unsupported by evidence other than his
affidavits, the Defendants were entitled to summary judgment. With
respect to the use of four-point restraints, the district court found that
the Defendants were entitled to qualified immunity because, at the
time of the incident, the law governing the use of such restraints was
not well-settled. With respect to McCreight's allegations of deliberate
indifference to his serious medical needs, the district court concluded
that he stated, at best, medical negligence not actionable in a § 1983
action. Finally, the district court found that there was no evidence to
support the imposition of supervisory liability as to Warden Davis.
McCreight appeals.

II.

We review grants of summary judgment de novo. See Higgins v.
E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
"[S]ummary judgment is proper `if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to a judgment as a matter
of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting
Fed.R.Civ.P. 56(c)). "Rule 56(e) therefore requires the nonmoving
party to go beyond the pleadings and by her own affidavits, or by the
`depositions, answers to interrogatories, and admissions on file,' des-

                     4
ignate `specific facts showing that there is a genuine issue for trial.'"
Id. at 324.

          We do not mean that the nonmoving party must produce
          evidence in a form that would be admissible at trial in order
          to avoid summary judgment. Obviously, Rule 56 does not
          require the nonmoving party to depose her own witnesses.
          Rule 56(e) permits a proper summary judgment motion to
          be opposed by any of the kinds of evidentiary materials
          listed in Rule 56(c), except the mere pleadings themselves
          ....

Id. In determining whether this showing has been made, the factual
evidence and all inferences to be drawn therefrom are reviewed in a
light most favorable to the party opposing the motion. See Ross v.
Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
Finally, summary judgment is not appropriate if the resolution of
material issues depends upon credibility determinations. Davis v.
Zahradnick, 600 F.2d 458 (4th Cir. 1979). With this standard in mind,
we find that summary judgment was improperly granted to the Defen-
dants on three of McCreight's claims.1

A. Excessive force claims. To prove a claim that prison officials
violated his constitutional rights through the excessive use of force,
an inmate must satisfy two requirements. First, he must satisfy a sub-
jective requirement that the force used by the corrections officers "in-
flicted unnecessary and wanton pain and suffering." Hudson v.
McMillian, 503 U.S. 1, 6 (1993). In the context of a prison distur-
bance, this question "ultimately turns 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. (quoting
Whitley v. Albers, 475 U.S. 312, 320-21 (1986). When evaluating evi-
dence to determine whether it is legally sufficient to satisfy the sub-
jective component, a court may allow an inmate's claim to go to the
jury only if it concludes that the evidence, viewed in a light most
_________________________________________________________________
1 McCreight has abandoned his supervisory liability claims against
Warden Davis by failing to raise them in his informal brief. See 4th Cir.
R. 34(b).

                     5
favorable to the claimant, "will support a reliable inference of wan-
tonness in the infliction of pain." Whitley , 475 U.S. at 322.

In addition to satisfying the subjective requirement, the inmate
must also satisfy an objective requirement; he must show that correc-
tional officers' actions, taken contextually, were"objectively harmful
enough" to offend "contemporary standards of decency." Hudson, 503
U.S. at 8 (internal quotation marks omitted). In determining whether
the objective component is satisfied, the factfinder must evaluate the
force applied and the seriousness of the resulting injury against the
need for the use of force and the context in which that need arose. Id.
A prisoner asserting malicious and sadistic use of force need not show
that such force caused an "extreme deprivation" or "serious" or "sig-
nificant" pain or injury to establish a cause of action. Hudson, 503
U.S. at 9. All that is necessary is proof of more than a de minimis pain
or injury. Id. Indeed, the objective component can be met by "the pain
itself," even if an inmate has no "enduring injury." Norman v. Taylor,
25 F.3d 1259, 1263 n.4 (4th Cir. 1994) (en banc).

In his sworn affidavit filed with his response to the Defendants'
motion for summary judgment, McCreight stated that he was beaten
by Defendants Sessions, Salmond, and Seaward on four occasions:
(1) when they entered his cell to place him in handcuffs and leg irons;
(2) when he was taken to the shower area; (3) when he was placed
in four-point restraints in his cell; and (4) when they intentionally
tripped him while he was in chains. The Defendants' affidavits con-
tradicted McCreight's version of the events.

The magistrate judge did not address these claims. The district
court determined that McCreight "failed to produce sufficient evi-
dence to support his claim that Defendants used excessive force. . . .
The sole `evidence' that McCreight has produced in support of his
contentions is an affidavit which essentially restates the allegations in
his pleadings." McCreight filed a second affidavit in which he
describes certain portions of the videotape of the incident and states
that the camera must have been turned off or turned away when the
alleged beatings occurred. The district court discounted this affidavit
as well, finding that McCreight "simply offers the unsubstantiated
conclusions that the video camera must have been`off' or `out of
view' when the alleged beatings occurred, or that the videotape has

                     6
been `cut' and `altered.'" The court concluded that "[s]ince
[McCreight's] `evidence' consists of nothing more than such affida-
vits, summary judgment is proper."

We find that the district court improperly applied the summary
judgment standard by failing to give proper consideration to
McCreight's affidavits and to the videotape. See Celotex Corp., 477
U.S. at 324. McCreight's first affidavit provided a detailed factual
account of the incident which, if believed, supports an excessive force
claim. This is especially so where, as here, there is no allegation by
anyone that McCreight was physically resisting the guards or other-
wise physically abusive. See Stanley v. Hejirika , 134 F.3d 629, 634
(4th Cir. 1998) ("when a prisoner is held and calmly beaten by two
guards in response to a verbal argument, the de minimis level is more
easily reached"). In discounting the second affidavit, the district court
necessarily made an improper credibility determination. Moreover,
the videotape itself appears to corroborate at least some of
McCreight's allegations, particularly his claim that the guards inten-
tionally tripped him by yanking his ankle chain. Accordingly, we
vacate the award of summary judgment with respect to this claim and
remand for further proceedings.

The district court also granted summary judgment to the Defen-
dants on McCreight's claim that the Defendants used excessive force
by placing him in four-point restraints. The district court found that
the Defendants were entitled to qualified immunity because "Williams
v. Benjamin, 77 F.3d 756 (4th Cir. 1996), the Fourth Circuit's most
recent and most definite pronouncement regarding the use of four-
point restraints . . . was not decided until three months after the inci-
dent that gave rise to this claim," the law on the use of four-point
restraints was not "clearly established." See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (defining qualified immunity). We find that the
district court's reliance on Williams in this context was misplaced and
that the Defendants were not, on these facts, entitled to qualified
immunity.

The "unnecessary and wanton infliction of pain" by prison officials
violated the Eighth Amendment long before Williams was decided.
Accepting as true McCreight's version of the events, the Defendants
placed him naked in four-point restraints for four hours--without any

                     7
penological justification--and either caused or greatly exacerbated a
serious back injury. The magistrate judge found that"there was no
allegation, nor is there evidence on the videotape, that [McCreight]
continued to yell, was disobedient, or remained hostile. The defen-
dants assert he was placed in restraints to prevent further assaults on
staff. However, [McCreight] could not have assaulted staff or other
inmates once he was placed in his cell." See United States v. Cobb,
905 F.2d 784, 789 (4th Cir. 1990) ("[P]unitive intent behind a defen-
dant's use of force may be inferred when the force is not reasonable
related to a legitimate nonpunitive governmental objective."). Indeed,
the use of four-point restraints on McCreight was later determined to
be "unfounded." Accordingly, we vacate the award of summary judg-
ment on this claim and remand to the district court for further pro-
ceedings.

B. Deliberate indifference claim. McCreight alleged that Defen-
dants Bryan and Joe were deliberately indifferent to his serious medi-
cal needs when they ignored his repeated complaints that his back
hurt and refused to review his medical records which would have
alerted them to his spinal condition. See Estelle v. Gamble, 429 U.S.
97 (1976). The district court concluded that, "[i]t is unclear whether
Defendants Joe and Bryan did, in fact, review [McCreight's] medical
history at this point--however, it is clear that they did examine
[McCreight] for signs of injury and subsequently released him back
to the prison officials."

The affidavit submitted by Nurse Joe states that:

          6. Nurse Bryan and I assessed Inmate McCreight's physi-
          cal condition and checked his vital signs. He had a small
          amount of blood in his sputum, which we cleaned off his
          face; we noted no active bleeding. He also complained that
          his back hurt, but he did not appear to need any immediate
          treatment. . . .

          7. Inmate McCreight's vital signs were normal, he
          appeared to be in no serious distress, and he appeared to
          have suffered no apparent injury. He was, therefore,
          released to the care of the officers.

                    8
Nurse Bryan's affidavit provides a similar account. The videotape
shows McCreight lying on the floor unconscious and Nurses Joe and
Bryan cleaning blood off his face with toilet paper. When they turned
him over, McCreight said--in a half-conscious state--that his back
hurt and that he could not stand up and asked to see a doctor. Joe and
Bryan checked McCreight's pulse and blood pressure and are seen
leaving him still in a state of unconsciousness, or semi-
unconsciousness, lying on the floor.

On this conflicting evidence, we find that there is a genuine dispute
as to a material factual issue on McCreight's medical claim that
should have prevented summary judgment.

III.

In sum, we vacate and remand for further proceedings that portion
of the district court's order granting summary judgment on
McCreight's claims that the officers violated the Eighth Amendment
by beating him, placing him in four-point restraints, and were deliber-
ately indifferent to his serious medical needs. We express no opinion
as to the Defendants' ultimate liability on these claims; we find only
that, in light of the evidence before the district court, summary judg-
ment was improper. We affirm in all other respects. We deny
McCreight's motions for emergency relief, for stay pending appeal,
to appoint counsel, and to appoint a specialist to review the videotape.
We deny McCreight's motion for 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 IN PART, AND REMANDED

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