                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 16-6783


SURRELL MONTIA DUFF,

                 Plaintiff – Appellant,

          v.

CHRIS POTTER, Correctional Officer at Buncombe County
Detention Facility; ROBERT MANGUM, Correctional Officer at
Buncombe   County   Detention  Facility;  WILLIAM   BAXTER,
Correctional Officer at Buncombe County Detention Facility;
THOMAS SCHINDLER, Correctional Officer at Buncombe County
Detention Facility,

                 Defendants - Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.   Frank D. Whitney,
Chief District Judge. (1:15-cv-00026-FDW)


Submitted:   October 31, 2016                Decided:     November 3, 2016


Before DUNCAN    and   WYNN,    Circuit   Judges,   and    DAVIS,   Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished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


Surrell Montia Duff, Appellant Pro Se. Thomas Joseph Doughton,
DOUGHTON RICH BLANCATO, PLLC, Winston-Salem, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Surrell       Duff     appeals        from     the        district    court’s         order

granting    summary        judgment       to   Defendants         in   Duff’s       42    U.S.C.

§ 1983 (2012) complaint alleging the use of excessive force in

violation of the Eighth Amendment and deliberate indifference to

serious medical needs.              On appeal, Duff solely challenges the

district court’s grant of summary judgment to Defendants Potter,

Mangum, and Baxter on the excessive force claim.                                    He argues

primarily that the court erred in determining that there were no

genuine dispute of material fact because he did not provide an

affidavit or other supporting material opposing the motion to

dismiss.

     Duff, now a federal inmate housed in Florida, filed a 42

U.S.C.     § 1983     action     against           four      Buncombe      County,        North

Carolina, correctional officers related to an incident at the

county     detention       facility        where        Duff    had    been     a    pretrial

detainee.         Defendants     filed         a   motion       for    summary      judgment.

Duff received Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)

notice.       Duff    filed     a     brief        in    response        opposing        summary

judgment    and     also    filed     a    motion       to     dismiss    the    motion      for

summary judgment.           The court granted the Defendants’ motion for

summary judgment, noting that Duff’s brief “was not accompanied

by any sworn affidavits, or any other type of evidence that

would be admissible on summary judgment.”

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     “We    review       de    novo      a     district           court’s         award    of     summary

judgment,       viewing       the    facts       and         inferences           reasonably         drawn

therefrom in the light most favorable to the nonmoving party.”

Woollard    v.        Gallagher,         712    F.3d         865,        873      (4th Cir.         2013).

“Summary judgment is appropriate only if the record shows ‘that

there is no genuine dispute as to any material fact and the

movant     is     entitled          to       judgment         as         a     matter      of       law.’”

Id. (quoting Fed. R. Civ. P. 56(a)).                                The relevant inquiry on

summary judgment is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided       that    one    party         must       prevail      as       a   matter       of    law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

We will uphold the district court’s grant of summary judgment

unless we find that a reasonable jury could return a verdict for

the non-moving party on the evidence presented.                                           See EEOC v.

Cent. Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009).

     Summary          judgment      “should             be    granted          only       when      it   is

perfectly       clear     that       no       issue          of     material           fact      exists.”

Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001).

A   “verified         complaint”         is     the          equivalent           of      an     opposing

affidavit       for    summary      judgment            purposes.              World      Fuel      Servs.

Trading, DMCC v. Hebei Prince Shipping Co., 783 F.3d 507, 516

(4th Cir. 2015); see also Davis v. Zahradnick, 600 F.2d 458,

459-60     (4th       Cir.     1979)         (holding             that       factual       allegations

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contained in a verified complaint that conflict with affidavits

supporting motion for summary judgment established a prima facie

case under § 1983, so as to preclude summary judgment).                                 Duff’s

complaint included a statement under 28 U.S.C. § 1746 (2012)

that the contents were true and correct.                           “[W]here affidavits

present      conflicting       versions           of     the     facts     which       require

credibility         determinations,       summary              judgment       cannot     lie.”

Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016) (internal

quotation and citation omitted).                   Thus, Duff’s statements in his

complaint should have been considered by the court as admissible

evidence rebutting the Defendants’ evidence.                           It is clear that

the district court did not do so, and to the extent that it may

have, it resolved the factual disputes in favor of the moving

party.

       Turning to what Duff must prove to succeed on his excessive

force claim, it is well established that the Due Process Clause

of the Fourteenth Amendment “protects a pretrial detainee from

the    use    of     excessive    force           that    amounts        to    punishment,”

Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), and is not “an

incident      of     some     other     legitimate             governmental        purpose.”

Bell v.      Wolfish,   441     U.S.    520,       538    (1979).         In   Kingsley     v.

Hendrickson, 135 S. Ct. 2466 (2015), however, the Supreme Court

held   that    a    plaintiff    must     demonstrate            “only    that    the    force

purposely      or     knowingly        used       against        him     was     objectively

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unreasonable.”       135 S. Ct. at 2473.               In determining whether the

force   was    objectively         unreasonable,             a    court       considers       the

evidence “from the perspective of a reasonable officer on the

scene, including what the officer knew at the time, not with the

20/20 vision of hindsight.”                Id. (citing Graham, 490 U.S. at

396).

      Considerations      such      as   the      following             may    bear   on      the

reasonableness       or   unreasonableness             of        the     force    used:       the

relationship    between      the    need    for        the       use    of    force   and     the

amount of force used; the extent of the plaintiff’s injury; any

effort made by the officer to temper or to limit the amount of

force; the severity of the security problem at issue; the threat

reasonably perceived by the officer; and whether the plaintiff

was actively resisting.            Kingsley, 135 S. Ct. at 2473.                      Because

the standard is an objective one, the court is not concerned

with the officers’ motivation or intent.                               See, e.g., Clay v.

Emmi,   797   F.3d    364,   370     (6th       Cir.    2015).           Moreover,       it    is

appropriate to determine whether the force used was objectively

reasonable in “full context,” as a segmented view of the events

“misses the forest for the trees.”                     Smith v. Ray, 781 F.3d 95,

101   (4th    Cir.   2015)    (brackets          and    internal             quotation     marks

omitted).

      Viewed from this legal lens, in the light most favorable to

Duff, and to the extent supported by the record, we conclude

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that   the     district      court       erred       in    determining    that      a    genuine

dispute of material fact did not exist as to the excessive force

claim.       Because Duff’s verified complaint acts as an opposing

affidavit,      there       are    several       factual         disputes:      whether     Duff

refused to remove his hands from his jumpsuit; whether Duff made

an aggressive move towards the officers; whether Duff’s head was

accidentally         pushed       into    the    wall        while     resisting,        causing

injury, or whether the officers carried out a more directed and

significant physical altercation; whether Duff resisted officers

when they attempted to secure him; and the severity of Duff’s

injuries.       These factual disputes must be resolved to assess the

Kingsley factors of need for the use of force and how much force

was    used,    extent      of     Duff’s   injuries,            any   effort    made     by    an

officer to limit the amount of force used, the threat reasonably

perceived       by    the     officers,         and       whether      Duff   was       actively

resisting.      See Kingsley, 135 S. Ct. at 2473.

       Duff’s    version          of   events        in    his    verified      complaint       is

significantly different from the Defendants’ version.                                   Although

the Defendants submitted affidavits and support for the motion

for summary judgment, the court may not consider these materials

in a vacuum.         The court must view the facts and inferences drawn

from the facts in Duff’s favor.                           The record before this court

does not conclusively establish that the district court complied

with   these     mandates.             Accordingly,         we   vacate   and     remand       the

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order   as    to   the    excessive   force   claims     against   Defendants

Potter, Mangum, and Baxter for further proceedings.

     We affirm the portion of the district court order granting

summary      judgment    to   Defendant    Schindler    on   the   deliberate

indifference to a serious medical need claim.                  Duff did not

address this claim in his informal brief.              Even affording Duff’s

informal      brief     liberal   construction,    Duff      has   failed   to

challenge this district court ruling.             See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (instructing courts to construe pro se

documents liberally).          Accordingly, we conclude that Duff has

forfeited appellate review of the court’s order as to deliberate

indifference to a serious medical need.            See 4th Cir. R. 34(b)

(“The Court will limit its review to the issues raised in the

informal brief.”); Jackson v. Lightsey, 775 F.3d 170, 177 (4th

Cir. 2014) (noting importance of Rule 34(b)).

     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.



                                                         AFFIRMED IN PART;
                                              VACATED AND REMANDED IN PART




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