                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-1243
                                     ___________

                                DE SHAWN DRUMGO,
                                            Appellant

                                           v.

   CPL. REGINALD BROWN; SGT. THOMPSON; SGT. JAMES THOMAS; LT.
STEVENSON; STAFF LT. KAREN HAWKINS; COUNSELOR RON HOSTERMAN;
BETTY BRIAN, CMS Service; DEPUTY PIERCE; WARDEN PERRY PHELPS; LT.
              THOMAS SEACORD; SGT. MICHAEL MAANS
                ____________________________________

                    On Appeal from the United States District Court
                               for the District of Delaware
                       (D. Del. Civil Action No. 08-cv-00592)
                    District Judge: Honorable Jerome B. Simandle
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 24, 2013
            Before: AMBRO, HARDIMAN and ALDISERT, Circuit Judges

                             (Opinion filed: May 24, 2013)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      De-Shawn Drumgo, a Delaware state prisoner proceeding pro se, appeals an order

of the United States District Court for the District of Delaware granting summary
judgment for the defendants in his civil rights action. For the reasons below, we will

vacate the judgment of the District Court in part and remand for further proceedings.

        The record reflects that on September 27, 2007, Corporal Reginald Brown went to

the James T. Vaughn Correctional Center Security Housing Unit to transport Drumgo, a

pre-trial detainee, to court. For security reasons, prisoners may not wear layers of

clothing when being transported. Officer Brown told Drumgo that he could not wear the

thermal shirt he had on under his prison jumpsuit. The parties dispute what happened

next.

        According to Drumgo, he asked to speak with a lieutenant because it was 48

degrees outside. He states in his declaration that Brown reiterated that he could not wear

his shirt and began shaking a can of pepper spray. Drumgo says he told Brown that he

has asthma and that he would not be able to breathe if sprayed. Brown then pointed the

pepper spray can at him and Drumgo ducked. Brown tackled and punched Drumgo and

other officers were alerted. Drumgo says he stated that he was not resisting, but

Lieutenant Stevenson and Corporals Thompson, Stiles, and Alexander sprayed their

pepper spray, caused him to fall by pulling on the chain to his leg shackles, and kicked

and stomped him. He says he was punched in the back of the head with handcuffs used

as brass knuckles. Drumgo states that he was still handcuffed and covered in pepper

spray, that he was not taken to the infirmary, and that he was kept from court to prevent

anyone from seeing a black eye and other injuries. Drumgo states that he suffers from

headaches, back pain, and numbness in his jaw and lip as a result of the beating.
                                             2
       Inmate Kevin Cuff, who was also scheduled to be transported, witnessed the

incident. Cuff also states in his declaration that Drumgo asked to speak to a lieutenant

about wearing a thermal shirt, that Brown shook his mace can, that Drumgo yelled that he

had asthma and would not be able to breathe if sprayed, and that Brown then pointed his

mace at Drumgo. 1 Cuff attests that Drumgo tried to use his hands, which were

handcuffed, to shield his face from being maced. He states that Brown’s mace fell to the

ground and Brown then began striking Drumgo’s head or face. Cuff says that Brown

tackled Drumgo and that Brown and other officers continued to beat him even though he

never resisted. Cuff states that Brown held Drumgo while officers punched him in the

head using handcuffs as brass knuckles. Inmate Frederick Kaymore provided a similar

statement. Cuff and Kaymore state that they thought the officers were trying to kill

Drumgo.

       Corporal Brown, however, attests that Drumgo was ordered to remove his thermal

shirt and he refused. Brown states that Drumgo moved toward him swinging his arms,

that he retrieved his can of pepper spray, and that Drumgo struck him across his temple

and knocked his pepper spray can to the floor. Brown says that he tried to restrain

Drumgo, who continued to swing his arms and grab him, and they landed on the floor.

Brown states that Corporals Alexander and Thompson helped him try to subdue Drumgo,

who resisted, and that Drumgo was ultimately handcuffed with the help of Lieutenant


1
 Although Cuff describes Brown’s can as mace, the record reflects that Brown carried
pepper spray.
                                         3
Stevenson. Brown denies that he or the other officers used restraining equipment to

cause Drumgo pain. He states that medical staff examined Drumgo after the incident.

       Corporal Debra Stiles, who was assigned to transport another inmate, also

witnessed the incident. She states in her declaration that Drumgo refused orders to

remove his shirt, that Brown reached for his pepper spray, and that Drumgo then swung

and hit Brown. She says that she gave her pepper spray to Alexander to use on Drumgo,

who resisted control until he was sprayed and restrained by Brown, Alexander, and

Thompson. Lieutenant Stevenson also submitted a declaration stating that Drumgo

resisted efforts to subdue him, that he grabbed his arm to gain control of him, and that

restraining equipment was not used to cause him pain.

       Corporals Alexander, Thompson, and Stiles prepared incident reports reflecting

that Drumgo started the altercation and that the officers used force to restrain him. At the

related disciplinary hearing, Drumgo was found guilty of disorderly and threatening

behavior and failing to obey an order. Assault charges were dismissed. The disciplinary

decision reflects that Drumgo stated that he might have swung at Brown’s mace can, but

he denied swinging at Brown.

       Drumgo filed a complaint in District Court pursuant to 42 U.S.C. § 1983 claiming

that Brown, Thompson, and Stevenson used excessive force against him. 2 In granting


2
 Drumgo also alleged in his complaint that after the altercation prison officers tampered
with his food, denied him access to the courts, and denied him his right to free exercise of
his religion, but he does not pursue these claims on appeal.

                                             4
summary judgment for the officers, the District Court found that the use of force was in

response to a threat to the safety of staff and inmates and was done in a good faith effort

to maintain or restore discipline. The District Court found that Drumgo was at least non-

compliant, that the officers took action after he disobeyed orders and acted aggressively,

and that the officers’ actions must be afforded substantial latitude. The District Court

also noted that Drumgo had not produced evidence of a discernible injury. Drumgo

moved for reconsideration and his motion was denied. This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is

plenary. Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000).

       As recognized by the District Court, Eighth Amendment cruel and unusual

punishment standards apply to a pretrial detainee’s excessive force claim arising in the

context of a prison disturbance. Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir. 2000).

The applicable test under the Eighth Amendment is “whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). Relevant factors include: (1) the

need for force, (2) the relationship between the need and the amount of force used, (3) the

extent of injury, (4) the extent of the threat to safety as reasonably perceived by officials,

and (5) “‘any efforts made to temper the severity of a forceful response.’” Brooks, 204

F.3d at 106 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)).

       As discussed above, Drumgo’s declaration and witness statements reflect that he

asked to speak to a lieutenant, that he reacted to the threat of pepper spray, that the
                                              5
officers beat him while he was handcuffed and/or shackled on the floor, and that he did

not resist. Although the officers present a different account of the incident, summary

judgment is not appropriate if “‘it appears that the evidence, viewed in the light most

favorable to the plaintiff, will support a reliable inference of wantonness in the infliction

of pain.’” Brooks, 204 F.3d at 106 (quoting Whitley, 475 U.S. at 322).

       We agree with Drumgo’s contention on appeal that there is a genuine issue of

material fact as to “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 7. The

evidence relied upon by the District Court, including Drumgo’s statement at his

disciplinary hearing that he might have swung at the pepper spray can and a note in a

medical record that he said he had assaulted a correctional officer, may raise questions

about Drumgo’s version of the events, but his credibility is a question for the fact finder.

The District Court also relied on a handwritten medical note stating that Drumgo denied

any pain when examined on September 27, 2007, and that no bleeding, swelling, or

discoloration was observed. Assuming its admissibility, the note is one piece of evidence

for the fact finder’s consideration. See Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir.

2002) (explaining de minimis nature of injuries may cast doubt on prisoner’s account of

the incident but that is an issue of fact to be resolved by the fact finder based on all of the




                                               6
evidence). We thus conclude that summary judgment was not warranted on Drumgo’s

excessive force claim. 3

         Accordingly, we will vacate the District Court’s order to the extent the District

Court granted summary judgment in favor of the officers on Drumgo’s excessive force

claim and remand for further proceedings. 4




3
 Drumgo also appeals an order rejecting his contention that the defendants had not
adequately responded to his discovery requests. Drumgo has not shown that the District
Court abused its discretion. Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1310
(3d Cir. 1995). To the extent Drumgo appeals the denial of his motion for appointment
of counsel, we also find no error in the District Court’s ruling.
4
    Judge Hardiman would affirm the judgment of the District Court.
                                           7
