                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0211p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                                Plaintiff-Appellee, -
 SHAUN LEARY,
                                                      -
                                                      -
                                                      -
                                                          Nos. 06-2603/2604
          v.
                                                      ,
                                                       >
 LIVINGSTON COUNTY et al.,                            -
                                      Defendants, -
                                                      -
                                                      -
                           Defendants-Appellants. -
 SCOTT STONE and DENIS MCGUCKIN,
                                                      -
                                                      -
                                                     N
                      Appeal from the United States District Court
                   for the Eastern District of Michigan at Ann Arbor.
                  No. 03-60021—Marianne O. Battani, District Judge.
                                  Argued: November 27, 2007
                               Decided and Filed: June 10, 2008
                  Before: CLAY, SUTTON, and McKEAGUE, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: John H. Dise, Jr., DISE & ASSOCIATES, Southfield, Michigan, Thomas A. Matthews,
Brighton, Michigan, for Appellants. Michael J. Kemnitz, Detroit, Michigan, for Appellee.
ON BRIEF: John H. Dise, Jr., Gina U. Puzzuoli, DISE & ASSOCIATES, Southfield, Michigan,
Thomas A. Matthews, Brighton, Michigan, for Appellants. Michael J. Kemnitz, Detroit, Michigan,
for Appellee.
         SUTTON, J., delivered the opinion of the court, in which McKEAGUE, J., joined. CLAY,
J. (pp. 6-14), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
       SUTTON, Circuit Judge. Not long after word spread at the Livingston County Jail that
detainee Shaun Leary had been charged with raping a nine-year-old girl, several prisoners beat him
up. At stake in this § 1983 action is, one, whether officer Scott Stone was deliberately indifferent
to Leary’s safety needs and, two, whether officer Denis McGuckin used excessive force against
Leary when he hit him on the back of his neck while walking him to his cell. As to Stone, we affirm

                                                 1
Nos. 06-2603/2604                    Leary v. Livingston County et al.                        Page 2


the district court’s denial of qualified immunity; as to McGuckin, we reverse the district court’s
denial of qualified immunity because the force used was de minimis.
                                                  I.
         Just after noon on Friday, February 11, 2000, police arrested Leary on charges of criminal
sexual conduct against a minor and brought him to the Livingston County Jail. During the intake
process later that night, according to Leary, officer Denis McGuckin called Leary a “sick prick” and
struck him on the back of the neck. JA 640. That same evening, according to Leary, officer Scott
Stone “mention[ed] to [Leary] that once other inmates found out what he did that there would be no
protection from anyone here at the jail,” JA 391, and proceeded to tell other inmates that Leary “was
in for raping a nine year old girl,” JA 846. The inmates began harassing Leary about the child-rape
charges on Sunday morning and beat him severely that evening. An ambulance took him to the
hospital, where he was treated for facial fractures and a skull fracture.
        Leary filed this § 1983 action against Livingston County, Stone and McGuckin. In ruling
on the defendants’ motions for summary judgment, the district court denied qualified immunity to
Stone as to the deliberate-indifference claim against him and denied qualified immunity to
McGuckin as to the excessive-force claim against him. Stone and McGuckin filed this interlocutory
appeal.
                                                 II.
        To overcome a qualified-immunity defense in the setting of a constitutional tort, a plaintiff
must establish (1) that the defendant violated a “constitutional right” and (2) that the right “was
clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). We decide the first question before
we reach the second one. Id. at 200.
                                                 A.
        Before addressing the merits of Stone’s appeal, we must consider a jurisdictional question.
For some time now, it has been clear that we may entertain interlocutory appeals from government
officials challenging a denial of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 527
(1985). But that jurisdiction does not extend to appeals that merely quibble with the district court’s
reading of the factual record, as opposed to appeals that challenge the legal premises of the district
court’s decision—such as what the relevant constitutional provision requires, whether plaintiff’s
record-supported allegations violate that constitutional guarantee and whether that constitutional
right was clearly established at the time of the underlying incident. See Behrens v. Pelletier, 516
U.S. 299, 313 (1996); Johnson v. Jones, 515 U.S. 304, 319–20 (1995); Floyd v. City of Detroit, 518
F.3d 398, 404–05 (6th Cir. 2008); Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 403 (6th Cir.
2007).
         Stone’s appellate papers are not a model of clarity. Some of his arguments merely push back
on the district court’s reading of the record-supported factual allegations, including most
conspicuously what the record says about Stone’s knowledge of the risk of harm to Leary. If that
were all Stone’s appeal did, we would lack jurisdiction over it. See Estate of Carter v. City of
Detroit, 408 F.3d 305, 310 (6th Cir. 2005). But that is not all Stone’s appeal does. Even after
“taking the facts in the light most favorable to” Leary, Stone’s appeal also presents “a series of
strictly legal questions,” Phelps v. Coy, 286 F.3d 295, 298–99 (6th Cir. 2002): Did the conditions
facing Leary pose an objectively “substantial risk of serious harm”? Farmer v. Brennan, 511 U.S.
825, 834 (1994); see Br. at 23 (arguing that Leary could show no “substantial risk of serious harm”
because Leary neither took the threats seriously nor sought help and because the officers were not
aware of similar assaults in the past). And was the alleged constitutional violation “so clearly
established at the time of the events in question that a reasonable officer would have known” that
Nos. 06-2603/2604                    Leary v. Livingston County et al.                          Page 3


his conduct was unlawful in the situation he confronted? Phelps, 286 F.3d at 298; see Br. at 25–29
(citing the reasonable-officer standard on each page); Reply Br. at 16 (arguing that Leary did not
meet his “burden to prove that no reasonable officer would have acted in the manner that Officer
Stone acted in”); id. at 17 (arguing that Leary has not shown “that it would be clear to a reasonable
officer that his conduct was unlawful in a situation he confronted”); see also id. at 15 (“[T]here is
no clearly established law prohibiting a jail officer from talking to an inmate about another’s
charge . . . .”). Because “these are the kind of questions that may be raised by interlocutory
appeal . . . [,] we have jurisdiction over this appeal.” Phelps, 286 F.3d at 298–99; see also
Livermore, 476 F.3d at 403.
        To say that we have jurisdiction over Stone’s appeal, however, is not to say that he should
prevail. To raise a cognizable deliberate-indifference claim, an inmate must show that the alleged
mistreatment was “objectively” serious and that the defendant “subjectively” ignored the risk to the
inmate’s safety. Farmer, 511 U.S. at 829, 834. On this record and at this stage of the case, Leary
has satisfied these requirements.
        Objectively, the harm facing Leary was “sufficiently serious.” Id. at 834 (internal quotation
marks omitted). Stone told two inmates, Duane Kimmel and Ross Hinchey, that Leary had been
charged with raping a nine-year-old girl. McGuckin verified the risk of serious harm that Leary
would face if the inmates learned of his charges: He “told [Leary] to keep his mouth shut about his
charges . . . [f]or his own safety” because he “fear[ed that someone might] assault[] him [for] a
charge like that.” JA 696–97. Stone’s statement to Leary that “once other inmates found out what
he did[,] there would be no protection from anyone here at the jail,” JA 391, confirmed that the
inmates’ knowledge of such charges posed an objectively serious risk of harm.
        Subjectively, Stone’s own words show he was “aware of facts from which the inference could
be drawn that a substantial risk of serious harm exist[ed]” and that he “dr[ew] the inference.”
Farmer, 511 U.S. at 837. “[O]nce other inmates found out what [Leary] did,” Stone knew there was
reason to believe that Leary would need “protection . . . at the jail,” JA 391, and he persisted in
telling other inmates about Leary’s charges despite that knowledge. Nor does the record offer any
evidence that Stone took any reasonable steps to protect Leary from the known substantial risk of
serious harm.
       Not only has Leary established a cognizable claim of deliberate indifference, but he also has
shown that the right was clearly established: “[P]rison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (internal quotation marks
omitted); see also id. at 834, 837. It thus would have been “clear to a reasonable officer that [this]
conduct was unlawful in the situation [Stone] confronted.” Saucier, 533 U.S. at 202. The district
court correctly rejected Stone’s motion for summary judgment.
                                                  B.
        Because Leary is a pretrial detainee, he brings his excessive-force claim against McGuckin
under the Fourteenth Amendment’s Due Process Clause, which “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); see also United States v. Budd, 496 F.3d 517, 530 (6th Cir. 2007). By contrast, convicted
prisoners may bring excessive-force claims under the Eighth Amendment, see Graham, 490 U.S.
at 395 n.10, and “free citizen[s]” may bring such claims under the Fourth Amendment, see id. at 394.
While there is room for debate over whether the Due Process Clause grants pretrial detainees more
protections than the Eighth Amendment does, see id. at 395 n.10, we need not resolve that debate
here. Under either constitutional guarantee, an excessive-force claimant must show something more
than de minimis force. See Hudson v. McMillian, 503 U.S. 1, 9–10 (1992) (Eighth Amendment);
Nos. 06-2603/2604                    Leary v. Livingston County et al.                          Page 4


Bell v. Wolfish, 441 U.S. 520, 539 n.21 (1979) (Due Process Clause); Budd, 496 F.3d at 530–31; see
also Riley v. Dorton, 115 F.3d 1159, 1167 (4th Cir. 1997) (en banc).
         The undisputed facts in this case show that Leary’s single allegation of force—that
McGuckin hit him “[i]n the back of the neck” with the side of his hand, performing “a karate chop
kind of deal”—was de minimis. JA 654. Leary, to start with, did not suffer any objectively
verifiable injury from the blow. There was no hospital visit after the encounter, no doctor’s visit,
no bruise, nothing in short to indicate that the encounter rose above a “negligible [use of] force” or
caused anything more than a “trifling injury.” Riley, 115 F.3d at 1167. There is a good reason, it
turns out, why there was no identifiable manifestation of injury: Leary himself testified at his
deposition that the hit “didn’t hurt or nothing,” that he “didn’t have any injury” and that he never
sought any medical treatment. JA 654. If “not . . . every malevolent touch by a prison guard gives
rise to a federal cause of action,” Hudson, 503 U.S. at 9, it would seem to follow that a “malevolent”
hit to the back of the neck that, in the claimant’s words, “didn’t hurt or nothing” does not give rise
to a federal cause of action either, cf. Budd, 496 F.3d at 531 (explaining that more than de minimis
force was alleged where the plaintiff testified that, after an assault, he requested medical attention
and “had bumps on his head and bruising on his body”); Carlton v. Turner, No. 05-1009, 2006 WL
955886, at *2 (6th Cir. Apr. 12, 2006) (explaining that more than de minimis force was alleged
where “plural assaults drew blood”).
         While Leary said that McGuckin used “a karate chop kind of deal” when hitting him on the
back of the neck, he not only downplayed the possibility that the force “hurt” him when he testified
at his deposition, but he also downplayed at his deposition any notion that the officer was trying to
hurt him. JA 654. As he testified, McGuckin “didn’t hit [him] that hard.” Id. And, as he further
testified, apparently to downplay the amount of force used, McGuckin hit him “the way a woman
would hit a man.” Id.; see also Bell-Bey v. Mayer, No. 98-1425, 1999 WL 1021859, at *2 (6th Cir.
Nov. 3, 1999); cf. Budd, 496 F.3d at 531 (explaining that more than de minimis force was used
where an officer “rammed [plaintiff’s] head into at least two different doors, slammed his head into
a table, and repeatedly shoved him into a wall”).
         Nor can Leary create a triable issue of fact simply by pointing to discrepancies between his
complaint (which said that the slap hurt) and his deposition testimony (which said that the slap did
not hurt). When a claimant’s testimony contradicts the allegations in his complaint, we will credit
his later testimony. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (noting that a summary
judgment motion “requires the nonmoving party to go beyond the pleadings”); Fed. R. Civ. P.
56(e)(2) (“When a motion for summary judgment is properly made and supported, an opposing party
may not rely merely on allegations or denials in its own pleading; rather, its response must—by
affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for
trial.”); see also Scott v. Harris, 127 S. Ct. 1769, 1776 (2007); Wysong v. City of Heath, 260 F.
App’x 848, 857 (6th Cir. Jan. 22, 2008). A claimant may not create a triable issue of fact by saying
one thing in a complaint and something else in a deposition.
        Pelfrey v. Chambers, 43 F.3d 1034 (6th Cir. 1995), does not lead to a different conclusion.
There, we permitted an excessive-force claim to go to a jury where two officers pulled out their
knives, approached the plaintiff, “grabbed” his hands and “forc[ed] them down to [his] side,” placed
their hands on his head and shoulder, “cut[] off a great portion of [his] hair” with a knife, let him go
and “stood there grinning[,] smiling [and] laughing and dropping [his] hair on the floor.” Id. at 1035
(internal quotation marks omitted). There is a considerable difference between the degree and nature
of force used in that case and in this one. Not only did the officers “grab[]” the plaintiff’s hands and
“forc[e]” them down, but they also threatened him with weapons, held him in place and used a knife
against him. They also instilled in the plaintiff an objective fear of serious physical harm—he was
“scared, intimidated, and threatened,” id. (internal quotation marks omitted)—something Leary does
not claim and indeed positively disclaims by saying “it didn’t hurt or nothing,” JA 654.
Nos. 06-2603/2604                      Leary v. Livingston County et al.                           Page 5


        Leary also relies on Hardy v. Vieta, 174 F. App’x 923 (6th Cir. Apr. 4, 2006), but that case
bolsters the conclusion that McGuckin used de minimis force. In Hardy, an officer “purposefully
and intentionally push[ed] a steel door on” the plaintiff, “smash[ing] him between the steel door and
a brick wall [and] injuring his arm and lower back.” Id. at 924. While “the extent of [the plaintiff’s]
injuries [was] not known,” id. at 926, no evidence in the record contradicted his allegation that he
was injured to some degree. No less importantly, pushing and smashing an inmate into a steel
door—so much so that another inmate heard a sound “like the door hitting something,” id. at 924
(internal quotation marks omitted)—differ in degree and kind from McGuckin’s “karate chop kind
of deal,” which “didn’t hurt” and was not “that hard,” JA 654.
        In the final analysis, this is an unusual case. It is not often that a constitutional tort claimant
seeks relief for an alleged assault or battery but then says that the defendant’s actions “didn’t hurt
or nothing” and never says that he felt threatened by the officer’s action. That is why we can agree
with our colleague’s framing of the issue—that the question is whether the actual or threatened force
was de minimis, not just whether the injury was de minimis—but not with his conclusion.
        No doubt, the complaint in this case sufficed to move the action from the pleadings stage to
discovery. But Leary’s answers in discovery made it clear that McGuckin’s actions, while rude and
unprofessional, did not rise to the level of a cognizable constitutional claim. As a matter of state tort
law, it may be that “the least touching of another in anger is a battery,” but that does not make it “a
violation of a constitutional right actionable under 42 U.S.C. § 1983.” Riley, 115 F.3d at 1167
(internal quotation marks omitted). The point of the de minimis rule is to make it clear that the
Constitution does not become a “font of tort law” that the federal courts “superimpose[] upon
whatever systems” the States already have. Paul v. Davis, 424 U.S. 693, 701 (1976). Otherwise,
every minor touching would become actionable, blurring the lines between the state courts’
enforcement of their tort laws and the federal courts’ enforcement of the Constitution. Whatever
else non-actionable de minimis force may be, it must include a touching that neither “hurt” nor
threatened the individual.
                                                   III.
        For these reasons, we reverse the denial of qualified immunity as to McGuckin, but we
affirm as to Stone and remand for further proceedings.
Nos. 06-2603/2604                    Leary v. Livingston County et al.                         Page 6


                                        ________________
                                            DISSENT
                                        ________________
         CLAY, Circuit Judge, dissenting. Shaun Leary was repeatedly brutalized while a pretrial
detainee at the Livingston County Jail at the hands of guards and inmates alike. On appeal, the two
guards that played a central role in this brutalization, Defendants Scott Stone and Denis McGuckin,
challenge the district court’s denial of qualified immunity with respect to Plaintiff’s claims of
deliberate indifference and excessive use of force. Each of the challenges raised by Defendants
should be rejected by this Court. With respect to Defendant Stone, it is clear from the briefs filed
in the instant appeal that he has not presented a legal question over which this Court has jurisdiction
and therefore his appeal must be dismissed. With respect to Defendant McGuckin, this Court should
find that the district court properly denied qualified immunity inasmuch as McGuckin sought to
intentionally inflict both physical and psychological harm upon Plaintiff through the arbitrary use
of force, which was more than de minimis, in violation of the Fourteenth Amendment. Because the
majority reaches conclusions to the contrary, I respectfully dissent.
                                         BACKGROUND
       The lawsuit at issue stems from an assault on Plaintiff, Shaun Leary, while he was a pretrial
detainee at the Livingston County Jail. When reviewing a denial of qualified immunity, this Court
must view the facts in the light most favorable to Plaintiff, and therefore I will present them
accordingly.
         On February 11, 2000, Plaintiff was arrested on charges of criminal sexual conduct in the
first and second degree. The complainant and alleged victim of the criminal charge was a nine year-
old-girl. After his arrest, Plaintiff was transported to the Livingston County Jail.
         At approximately 1:30 a.m. on Saturday, February 12, 2000, Plaintiff was processed into the
jail by two officers, Scott Stone and Denis McGuckin. While being processed for intake, Officer
McGuckin allegedly harassed Plaintiff, calling him a “sick bastard” and throwing arraignment
paperwork in his face. (J.A. at 385, 652) During this process, Officer Stone warned Plaintiff that
other inmates would express similar disapproval of his charges and that he would likely be a target
of physical assault given the allegations of child molestation. Indeed, Stone admitted in a written
statement that he told Plaintiff that “once other inmates found out what he did that there would be
no protection from anyone here at the jail.” (J.A. at 391, 848) Officer McGuckin also admonished
Plaintiff to “keep his mouth shut about his charges . . . for his own safety.” (J.A. at 696, 431, 448)
        Another inmate, Richard Kimmel, was also “deloused” for intake purposes at the same time
as Plaintiff. While escorting inmate Kimmel to a minimum security cell after processing, Officer
Stone told him that “the guy he was deloused with was in for raping a nine year old girl.” (J.A. at
847)
         Upon completion of Plaintiff’s processing, Stone and McGuckin escorted Plaintiff to cell 127
N in the medium security wing of the jail. Prior to reaching the cell, McGuckin instructed Plaintiff
to retrieve a bin containing his bedding materials, a towel and a laundry bag. As Plaintiff picked up
his materials, he alleges that McGuckin struck him on the back of the neck, causing him to drop his
bin. Plaintiff described the blow as a “karate chop.” (J.A. at 640) Although it is unclear how much
force was used, Plaintiff analogized the amount of force to “the way a woman hits a man,” (J.A. at
654), and alleges that he suffered as a result of the strike.
Nos. 06-2603/2604                           Leary v. Livingston County et al.                                    Page 7


        After escorting Plaintiff to his cell, Officer Stone was charged with monitoring the medium
and maximum security wings of the jail. Thereafter, one inmate, Eric Riley, initiated contact with
Officer Stone via intercom to request permission to leave his cell to obtain medication. While the
intercom was still active, Officer Stone communicated with          Ross Hinchey, the other inmate
occupying the cell. Hinchey was known as the “Rock Boss”1 of the medium security area. Officer
Stone told Hinchey that the “new guy in N” was “in for raping a nine year old girl.” (J.A. at 850)
This statement was corroborated by a number of inmates including Eric Riley and Sandy Glover,
both of whom describe overhearing Officer Stone’s disclosure of Plaintiff’s charges.
         On Saturday, while all inmates were on “lock down,” Glover and other inmates began
verbally harassing Plaintiff. By Sunday, February 12, 2000, the harassment by inmates intensified
as Plaintiff was called a “baby raper” and a “bitch.” (J.A. at 403) At approximately 6:15 p.m.,
Plaintiff left his cell to call home, seeking his family’s help in getting transferred out of the jail
because “the other inmates were out to get him and they were going to kill him.” (J.A. at 636)
While standing by the phone, Plaintiff was pulled over a nearby rail from behind by Glover and
choked, punched and kicked by several inmates until unconscious. He lay battered and bloody on
the jailhouse floor until another inmate came to his aid and escorted him to officers for medical
attention. Following the assault, Plaintiff was transported to McPherson Hospital Emergency Room
and admitted to St. Joseph’s Hospital for treatment. As a result of the assault, Plaintiff suffered a
facial fracture and a fractured nose, which required corrective surgery.
        Following the assault, the Livingston County Sheriff’s Department launched an internal
criminal investigation. Several inmates were interviewed as part of the investigation. While the
investigation centered on ascertaining the criminal culpability of inmates involved in the assault,
Officers McGuckin and Stone were implicated due to allegations of McGuckin’s use of force as well
as Stone’s role in informing the inmate population of Plaintiff’s charges. No charges, however, were
filed against either officer.
         Plaintiff later brought suit under 42 U.S.C. § 1983 against Livingston County, the Livingston
County Sheriff and a number of individual officers including Stone and McGuckin. Leary v.
Livingston County, No. 03-60021, 2006 WL 2865213, at *1 (E.D. Mich. 2006). With respect to
Officer McGuckin, Plaintiff alleged deliberate indifference and excessive use of force in violation
of the Fourth, Fifth, Eighth and Fourteenth Amendments. Id. With respect to Officer Stone, Plaintiff
alleged that his conduct constituted deliberate indifference in violation of the Eighth and Fourteenth
Amendments. Id. All Defendants moved for summary judgment. Id. In particular, Defendants
McGuckin and Stone argued that they were entitled to qualified immunity. The district court
granted Officer McGuckin’s motion for summary judgment with respect to deliberate indifference
but denied summary judgment with respect to Plaintiff’s allegation of excessive force. Id. at *6. The
district court found that there was a genuine dispute of material fact as to whether McGuckin used
force maliciously and sadistically for the purpose of causing harm in violation of the Fourteenth
Amendment as analogized to the standards of the Eighth Amendment. In addition, the district court
concluded that Officer Stone was not entitled to qualified immunity with respect to Plaintiff’s
deliberate indifference claim. Id. at *7. In particular, the district court determined that there was a
triable issue of material fact with respect to whether Stone recklessly disregarded a substantial risk
of harm to Plaintiff when he told other inmates about Plaintiff’s charges. Defendants Stone and
McGuckin now timely appeal.




         1
           According to deposition transcripts, a “Rock Boss” is an inmate who is “in charge” of his area within the jail.
(J.A. at 754)
Nos. 06-2603/2604                     Leary v. Livingston County et al.                          Page 8


                                            DISCUSSION
        I.      Jurisdiction to Hear Defendant Stone’s Qualified Immunity Appeal
        Although the majority understandably wants to reach the merits of Stone’s qualified
immunity appeal given the unpleasant factual circumstances of this case, unfortunately the issues
raised by Stone fall outside of the narrow jurisdictional authority of this Court. Throughout Stone’s
brief to this Court, he repeatedly challenges the factual findings made by the district court in its
denial of qualified immunity. On review of the district court’s qualified immunity determination,
we are bound by the jurisdictional confines of the “collateral order” doctrine and may reach only
those appeals that present pure questions of law. In short, this Court cannot reach the factual
disputes that Stone invites this Court to resolve on appeal. Thus, contrary to the majority’s
determination, Stone’s appeal should be dismissed for lack of jurisdiction.
         While most denials of summary judgment are nonfinal orders which cannot be appealed
under 28 U.S.C. § 1291, it is well established that an order denying qualified immunity is
immediately appealable. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985). In Mitchell v.
Forsyth, the Supreme Court held that this Court has jurisdiction to hear an interlocutory appeal taken
from a denial of qualified immunity pursuant to the “collateral order” doctrine under § 1291. Id. at
525-27. Under this doctrine, the immediate review of a qualified immunity determination is based
on the fact that “the qualified immunity defense exists partly to protect officials from having to stand
trial; a defendant wrongly forced to go to trial loses the benefit of the immunity even if he or she is
exonerated after trial; therefore, the order cannot effectively be reviewed after trial and is considered
final.” Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002).
         This Court’s jurisdiction regarding orders denying qualified immunity, however, is narrow.
This Court may exercise jurisdiction “only to the extent that a summary judgment order denies
qualified immunity based on a pure issue of law.” Gregory v. City of Louisville, 444 F.3d 725, 742
(6th Cir. 2006). Indeed, “[a] defendant, entitled to invoke a qualified immunity defense, may not
appeal a district court’s summary judgment order insofar as that order determines whether or not the
pretrial record sets forth a ‘genuine’ issue of material fact for trial.” Johnson v. Jones, 515 U.S. 304,
319-20 (1995). Rather, “the defendant must be prepared to overlook any factual dispute and to
concede an interpretation of the facts in the light most favorable to the plaintiff’s case.” Berryman
v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998); see also Booher v. Northern Kentucky Univ. Bd. of
Regents, 163 F.3d 395, 396-97 (6th Cir. 1999). Thus, to the extent that the denial of qualified
immunity is based on a factual dispute, such a denial falls outside of the narrow jurisdiction of this
Court. Berryman, 150 F.3d at 563; Gregory, 444 F.3d at 742 (“To be clear, an appellant’s
contention that the district court erred in finding a genuine issue of fact for trial is not the type of
legal question which we may entertain on an interlocutory basis.”).
        As the majority correctly notes, a § 1983 claimant alleging deliberate indifference must meet
objective and subjective requirements in order to establish a constitutional violation. See Farmer
v. Brennan, 511 U.S. 825, 833 (1970). First, the failure to protect from risk of harm must be
objectively, “sufficiently serious.” Id. To meet this requirement, Plaintiff must show that “he is
incarcerated under conditions posing a substantial risk of serious harm.” Id. Second, to satisfy the
subjective requirement, Plaintiff must show “more than ordinary lack of due care for the prisoner’s
interests or safety.” Id. at 835. Instead, the subjective requirement is met where a plaintiff
demonstrates that prison officials acted with “deliberate indifference” to a substantial risk of harm.
An official is deliberately indifferent where “the official knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware of the facts from which the inference
could be drawn that a substantial risk of harm exists, and he must also draw the inference.” Id. at
837.
Nos. 06-2603/2604                    Leary v. Livingston County et al.                          Page 9


        In his briefing to this Court, instead of contesting whether the facts as alleged by Plaintiff
constitute a constitutional violation, Defendant Stone factually disputes Plaintiff’s proof regarding
the subjective prong of the deliberate indifference inquiry–that is, whether he was aware of and
disregarded a substantial risk of harm to Plaintiff. For example, Defendant Stone argues that he was
not aware that other inmates would pose a threat to Plaintiff because of the nature of his charges.
Rather, he asserts that he mentioned Plaintiff’s charges to one inmate out of a sense of
“wonderment.” (Stone Br. at 24) However, in denying summary judgment, the district court found
a genuine issue of material fact regarding Defendant Stone’s knowledge of the risk of harm to
Plaintiff. Indeed, the district court noted that Stone’s awareness of a substantial risk of harm was
“evidenced by Stone’s admission that ‘once the other inmates found out what he did that there would
be no protection from anyone here at the jail.’” Leary, 2006 WL 2865213, at *9. In short, Stone
impermissibly disputes the facts that, if credited, support a finding that he was aware of a substantial
risk of harm to Plaintiff.
        Moreover, Stone suggests that there was no evidence that he facilitated or encouraged an
attack on Plaintiff–that is, whether he disregarded a substantial risk of harm to Plaintiff. Instead,
Defendant Stone maintains that he did not mention Plaintiff’s charges to more than one person
housed at the jail. Rather, Stone argues that another inmate, Ross Hinchey, did not hear his
comments over the intercom regarding Plaintiff’s rape charges because the inmate was sleeping.

        Again, the evidence presented to and considered by the district court at summary judgment
contradicts Stone’s assertions. The district court considered an interview with Hinchey where he
stated that he did in fact hear Stone’s comment regarding Plaintiff’s charges over the intercom.
Based on this evidence, the district court found that there was a genuine dispute of material fact
regarding the number of people who learned of Plaintiff’s charges from Stone. Taking all inferences
in favor of Plaintiff, the district court found sufficient evidence that Stone recklessly disregarded a
risk of harm to Plaintiff when he told at least two inmates of Plaintiff’s charges.
        Additionally, this Court is also without jurisdiction to review Defendant Stone’s assertion
that Plaintiff’s right to be free from a substantial risk of harm was not clearly established. In his
appellate brief, Stone does not present a developed legal argument, but instead merely sets forth the
legal standard for qualified immunity. He does not suggest how such a standard is applicable to him
and has thus waived the argument. “It is a ‘settled appellate rule that issues averred to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.’” Spirko v. Mitchell, 368 F.3d 603, 612 (6th Cir. 2004) (quoting United States v. Elder, 90
F.3d 1110, 1118 (6th Cir. 1996)).
         In essence, Defendant Stone does not dispute the deliberate indifference theory advanced by
Plaintiff. Although he states that Plaintiff has not proven a violation of a clearly established right,
in substance what Stone actually presents is a factual argument regarding his awareness and
disregard of a substantial risk of harm to Plaintiff. This sort of argument, based upon disputes of
fact, is inappropriate for review on appeal of a denial of qualified immunity.
        II.    Defendant McGuckin and Plaintiff’s Excessive Force Claim
        Although Defendant Stone’s appeal should be dismissed, the majority properly reaches the
merits of Defendant McGuckin’s appeal regarding the denial of qualified immunity with respect to
Plaintiff’s excessive force claim. As discussed below, however, the majority erroneously concludes
that McGuckin is entitled to qualified immunity despite the fact that McGuckin, through his use of
force, intended to terrorize, punish and harass Plaintiff because of his charges. Contrary to the
majority’s determination, McGuckin’s actions were more than de minimis and constituted excessive
Nos. 06-2603/2604                    Leary v. Livingston County et al.                         Page 10


force in violation of Plaintiff’s Fourteenth Amendment rights. Therefore, McGuckin is not entitled
to qualified immunity and the district court should be affirmed.
         “Qualified or ‘good faith’ immunity is an affirmative defense that must be pleaded by a
defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). This defense allows a
government official to invoke “an entitlement not to stand trial or face the other burdens of
litigation.” Saucier v. Katz, 533 U.S. 194, 200 (2001). To determine whether qualified immunity
was properly denied, this Court must examine: (1) whether, considering the evidence in the light
most favorable to the party injured, a constitutional right has been violated, and (2) whether that
right was clearly established. Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir.
2005) (citing Saucier, 533 U.S. at 201); Comstock v. McCrary, 273 F.3d 693, 701 (6th Cir. 2001).

       A.      Source of Plaintiff’s Constitutional Right to Be Free from Excessive Force
        In evaluating whether qualified immunity was properly denied, the constitutional right
alleged to have been infringed upon must first be ascertained. Graham v. Conner, 109 S.Ct. 1865,
1870 (1989). In Graham v. Conner, the Supreme Court noted that there is no generic standard for
excessive force claims brought under § 1983. Instead, courts were directed to begin the analysis of
§ 1983 excessive force claims by “identifying the specific constitutional right allegedly infringed
by the challenged application of force.” Id. The specific constitutional provision to be applied to
the challenged application of force turns largely on the status of the plaintiff at the time of the
alleged use of excessive force. “In most instances, that will be either the Fourth Amendment’s
prohibition against unreasonable seizures of the person, or the Eighth Amendment’s ban on cruel
and unusual punishments, which are the two primary sources of constitutional protection against
physically abusive governmental conduct.” Id. at 1870-71. The determination of the proper
application of one amendment or another “is not merely academic, for the standards of liability vary
significantly according to which amendment applies.” Phelps v. Coy, 286 F.3d 295, 299 (6th Cir.
2002).
        At the time of the alleged assault, Plaintiff was a pretrial detainee at the Livingston County
Jail. A pretrial detainee is a person who has been “lawfully committed to pretrial detention [and]
has not been adjudged guilty of any crime. He has only a judicial determination of probable cause
as a prerequisite to [the] extended restraint of [his] liberty following arrest.” Bell v. Wolfish, 441
U.S. 520, 536 (1979) (internal citations and quotations omitted). As the Supreme Court noted in
Bell v. Wolfish, pretrial detainees “legitimately may be incarcerated by the Government prior to a
determination of their guilt or innocence.” 441 U.S. at 523.
        Notwithstanding the government’s legitimate incarceration of pretrial detainees, the Supreme
Court has held that “under the Due Process Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.” Id. at 535. Thus, because a pretrial
detainee has not yet been convicted, the source of a pretrial detainee’s right to be free from excessive
force stems from the Fourteenth Amendment rather than the Eighth Amendment. Under the
Fourteenth Amendment’s Due Process Clause, the proper inquiry is whether the challenged action
“amounts to punishment of the detainee.” Id. As the Court noted in Wolfish, “[a] sentenced inmate,
on the other hand, may be punished, although that punishment may not be ‘cruel and unusual’ under
the Eighth Amendment.” 441 U.S. at 536 n.16; see also Whitley v. Albers, 475 U.S. 312, 318
(1986) (noting that the Eighth Amendment’s 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”).
In other words, unlike the post-conviction context, substantive due process prohibits government
action that seeks to bestow retribution or punishment upon pretrial detainees. Wolfish, 441 U.S. at
540 n.20.
Nos. 06-2603/2604                     Leary v. Livingston County et al.                          Page 11


         Although the rule announced in Bell v. Wolfish concerned conditions of confinement, the
Court has made clear that substantive due process extends not only to such conditions but also to
claims of excessive force made by pretrial detainees. As the Supreme Court noted in Graham, “[i]t
is clear . . . that the Due Process Clause protects a pretrial detainee from the use of excessive force
that amounts to punishment.” 109 S.Ct. at 1871 n.10 (citing Wolfish, 441 U.S. at 535-539); see also
Block v. Rutherford, 468 U.S. 576, 584 (1984).
        In evaluating excessive force claims made by pretrial detainees, this Court has adopted the
due process rationale announced in Bell v. Wolfish. See Gantt v. Akron Corrections Facility, No.
95-3147, 1996 WL 6530 (6th Cir. 1996) (unpublished); Phelps, 286 F.3d at 301; United States v.
Budd, 496 F.3d 517, 529 (6th Cir. 2007). Thus, in the instant case, Plaintiff’s excessive force claim
is governed by the Fourteenth Amendment, which presents an inquiry distinct from the heightened
showing required to establish a violation of the Cruel and Unusual Punishments Clause of the Eighth
Amendment.
        B.      Fourteenth Amendment As Applied to Plaintiff’s Excessive Force Claim
         As noted above, the Due Process Clause of the Fourteenth Amendment “protects a pretrial
detainee from the use of excessive force that amounts to punishment.” Graham, 109 S.Ct. at 1871
n.10 (citing Wolfish, 441 U.S. at 535-36). To determine whether a constitutional violation has
occurred, “[a] court 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.” Id. at 538. Because
jails are often dangerous and the “maintenance of prison security and discipline may often require
that prisoners be subjected to physical contact which at common law would be actionable as an
assault or battery and which, in retrospect, may have been excessive,” Parrish v. Johnson, 800 F.2d
600, 604 (6th Cir. 1986), courts must examine the totality of the circumstances to determine whether
a particular governmental action was violative of a detainee’s Fourteenth Amendment rights while
giving due deference to the judgments of correctional officers. Wolfish, 441 U.S. at 538-39.
         The examination of the totality of the circumstances includes an inquiry into the alleged
perpetrator’s state of mind. Graham, 109 S. Ct. at 1873 (noting that the term “punishment” “clearly
suggest[s] some inquiry into subjective state of mind . . . .”). The absence of a clear intent to punish,
however, is not fatal to a detainee’s § 1983 excessive force claim. Rather, “[a]bsent a showing of
an express intent to punish on the part of detention facility officials, that determination generally will
turn on whether an alternative purpose to which [the use of force] may rationally be connected is
assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to
it.” Wolfish, 441 U.S. at 538-39. An intent to punish a pretrial detainee may be inferred from the
use of force in the absence of any penological justification. See Wolfish, 441 U.S. at 539 (“[I]f 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.”). When examining claims
of excessive force, however, courts must be mindful that “[t]here is, of course, a de minimis level
of imposition with which the Constitution is not concerned.” Wolfish, 441 U.S. at 539 n.21 (quoting
Ingraham v. Wright, 430 U.S. 651, 674 (1977)).
        When viewing the facts in the light most favorable to the Plaintiff, as the majority seems
unwilling to do, it is clear that there is a genuine issue of material fact regarding whether
McGuckin’s actions were intended to punish Plaintiff because of the nature of the charge for which
he was detained. The “karate chop” at issue was preceded by McGuckin’s initial harassment of
Plaintiff wherein he called Plaintiff a “sick bastard.” Moreover, the “karate chop” served no
legitimate penological objective inasmuch as Plaintiff was compliant with the orders given to him.
Indeed, Plaintiff was not resisting the orders of either McGuckin or Stone, and in fact was bending
down to comply with McGuckin’s order that he retrieve his bedding materials. Clearly, Plaintiff
Nos. 06-2603/2604                     Leary v. Livingston County et al.                          Page 12


posed no threat to the safety of McGuckin or others. Taken together, Defendant McGuckin’s
harassment and the fact that Plaintiff posed no threat to officers or other detainees demonstrates that
McGuckin’s conduct was not designed to advance penological objectives but rather to punish
Plaintiff.
        The majority, however, finds that Plaintiff cannot establish a constitutional violation.
Although the majority does not dispute that McGuckin intended to punish Plaintiff, apparently it
believes that the use of force was not excessive enough for recovery under § 1983. The majority
concludes that McGuckin’s use of force was de minimis, and therefore not violative of the
Fourteenth Amendment, because Plaintiff suffered no ascertainable physical injury. Although the
use of force must be more than de minimis to establish a cognizable claim of excessive force,
whether a plaintiff suffered significant pain or injury is not dispositive. Hardy v. Vieta, 174 F.
App’x 923, 926 (6th Cir. 2006) (unpublished) (“[W]hether force is de minimis does not depend on
the extent of the prisoner’s injury.”). Indeed, the question of injury may be probative of the amount
of force used but is not itself required to sustain a constitutional claim. As the Supreme Court noted
in Hudson v. McMillian, 503 U.S. 1, 7 (1992), “the extent of an injury suffered by an inmate is one
factor that may suggest whether the use of force could plausibly have been thought necessary in a
particular situation . . . .” See also id. (“The absence of serious injury is . . . relevant to the Eighth
Amendment inquiry, but does not end it.”). Even in the context of the Eighth Amendment, as noted
by the Hudson court, “[w]hen prison officials maliciously and sadistically use force to cause harm,
contemporary standards of decency are always violated. This is true whether or not significant
injury is evident.” Id. at 8.
        Relying on Hudson, this Court has found uses of force to be more than de minimis, despite
the fact that the plaintiff suffered no physical injuries, where such force exacts psychological harm
and produces an environment of fear of arbitrary violence at the hands of guards. See Pelfrey v.
Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995); Hardy, 174 F. App’x at 926. For example, in Pelfrey
v. Chambers, an excessive force case arising under the Eighth Amendment, an officer allegedly
assaulted a plaintiff-inmate by pulling out a knife, and cutting the plaintiff’s hair, while another
officer held the plaintiff’s hands behind his back. 43 F.3d at 1035. After the assault, the officers
“stood there grinning and smiling.” Id. The plaintiff stated that “these officers had me scared,
intimidated, and threatened.” Id. In examining the circumstances surrounding the alleged
constitutional violation, we found that the officer’s actions “were designed to frighten and degrade
[the plaintiff] by reinforcing the fact that his continued well being was entirely dependent on the
good humor of his armed guards.” Id. at 1037. Based on this psychological harm, the Pelfrey court
found that the plaintiff stated a cognizable constitutional claim of excessive force which was more
than de minimis, notwithstanding the fact that he suffered no physical injury or pain.
         In Pelfrey, we cited Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986), with approval to
support the conclusion that a plaintiff may establish a cognizable constitutional claim of excessive
force where the aim of such force was to harass, intimidate or terrorize. In Parrish, this Court found
qualified immunity to be inappropriate where a prison guard repeatedly taunted a paraplegic prisoner
with a knife and failed to communicate the prisoner’s requests for medical care to nurses. The
Parrish court noted that the defendant’s actions were “devoid of logic or reason,” and absent any
“legitimate penological or institutional objective.” Id. at 605. The defendant, we noted, “acted to
strip [the plaintiff] of his dignity.” Id. Based on this conduct and its psychological effects on the
plaintiff, we found that the plaintiff presented sufficient evidence of an Eighth Amendment
violation. Id.
        Similarly, in Hardy v. Vieta, 174 F. App’x 923 (6th Cir. 2006), the plaintiff alleged that a
prison guard assaulted him in violation of the Eighth Amendment. There, the plaintiff alleged that
the defendant entered his cell and told another inmate that he intended to harm the plaintiff. Id. at
924. The plaintiff alleged that the defendant pushed a steel door onto him, smashing him between
Nos. 06-2603/2604                    Leary v. Livingston County et al.                         Page 13


the steel door and a brick wall. The plaintiff alleged that he suffered injuries to his arm and lower
back as a result of the assault. Id. Despite the fact that the plaintiff had “no recorded objective
injuries,” we found that summary judgment was inappropriate. Id. at 925. We rejected the
defendant’s contention that the use of force was de minimis, noting that “whether the use of force
is de minimis does not depend on the extent of the prisoner’s injury.” Id. (citing Hudson, 503 U.S.
at 9-10). Instead, this Court found that the use of force was more than de minimis. Id. at 926. We
reached this conclusion, in part, based on the intentional and premeditated nature of the force and
the “unreasonable threat of injury” produced by such force. Id.
        Although the aforementioned cases were based on the Eighth Amendment, their wisdom with
respect to what constitutes more than a de minimis use of force is equally applicable in the
Fourteenth Amendment context. Indeed, it would be quite incongruous for an individual convicted
of a crime to have greater protections than one who is merely being held pending a determination
of guilt or innocence. Thus, Pelfrey, Parrish and Hardy support the proposition that non-physical
injuries and the effects of intentional use of force are sufficient to establish a cognizable claim of
excessive use of force that is more than de minimis.
        The majority, however, reads Pelfrey and Hardy far too narrowly to reach the opposite
conclusion. For example, the majority suggests that the use of force in Pelfrey was of a different
“degree and nature” because the defendant grabbed the plaintiff, held him down while cutting his
hair and grinned and laughed. Based on these factual differences, the majority concludes that
Pelfrey does not support Plaintiff’s claim. The attempt to distinguish Pelfrey, however, is
disingenuous and lacks a principled basis. In both this case and in Pelfrey, neither claimant alleged
serious injury or even suggested that the use of force resulted in any physical pain. In both this case
and in Pelfrey, the constitutional violation was based on the psychological effects of the use of force.

       Moreover, the majority suggests that Hardy is inapposite because the level of force used by
the defendant was greater than the “karate chop” at issue here. Once again, the majority
misrepresents the holding of that case in an attempt to limit the protections available under the
Fourteenth Amendment. Contrary to the majority’s characterization of the case, the Hardy court
was clear in finding that the “unreasonable threat of injury” could support a constitutional claim.
Thus, both Pelfrey and Hardy support the district court’s finding that McGuckin’s use of force was
more than de minimis.
        Under the majority’s reading of the caselaw outlining the boundaries of permissible uses of
force in institutional settings, however, the government and its officials are permitted to engage in
uses of force designed to psychologically harm a detainee so long as they do not impose some
arbitrary quantum of physical pain. Such a rule is particularly disturbing given the current climate
of detainee abuse as well as the evolving techniques of punishment and interrogation that will easily
pass this test, while inflicting untold damage upon detainees and prisoners alike. Such a rule cannot
stand. Cf. Estelle v. Gamble, 429 U.S. 97, 102 (1976) (noting that torture and barbarous punishment
was the “primary concern of the drafters” of the Eighth Amendment). Rather, the better rule, as
announced in Pelfrey, Parrish and Hardy, wherein psychological injury due to intentional use of
force designed to punish a detainee may support a claim of excessive use of force, adequately
protects detainees while preserving the prerogatives of correctional institutions.
        Applying this rule to the instant case, it is clear that McGuckin’s use of force was more than
de minimis. McGuckin took it upon himself to determine that Plaintiff should be “punished” for his
alleged crime and “karate chopped” him while he was essentially defenseless. That Plaintiff was
not injured was merely fortuitous inasmuch as McGuckin intentionally and maliciously struck him
on the neck. The effect of the use of force, however, hit the mark, as in Pelfrey, because the force
“frighten[ed] and degrade[d] [Plaintiff] by reinforcing the fact that his continued well being was
Nos. 06-2603/2604                    Leary v. Livingston County et al.                         Page 14


entirely dependent on the good humor of his armed guards.” 43 F.3d at 1037; see also Hardy, 174
F. App’x at 926. Indeed, Plaintiff alleges in his complaint that he suffered as a result of McGuckin’s
use of force. Whether he was physically hurt is inapposite. Consequently, when viewing the facts
in the light most favorable to Plaintiff, like Pelfrey, Parrish and Hardy, it cannot be said that
McGuckin’s flagrant assault on Plaintiff was de minimis or constitutionally insignificant. Plaintiff,
therefore, is entitled to have his excessive force claim heard by a jury and to have the ability to make
his case for damages, even if nominal. See Carey v. Piphus, 435 U.S. 247, 264 (1978) (approving
nominal damages for the “mental and emotion distress caused by the denial of due process,”
although no actual injury was proven); see also Pembaur v. City of Cincinnati, 882 F.2d 1101, 1104
(6th Cir. 1989) (noting that nominal damages are appropriate for claims where the only proof of
emotional injury was plaintiff’s claim that he was “highly upset”). To hold otherwise “would permit
any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary
quantity of injury.” Hudson, 503 U.S. at 9. Indeed, the majority’s rationale may have the untoward
consequence of encouraging the use of psychological torture in some instances where physical injury
may be de minimis.
                                          CONCLUSION
        For the reasons set forth above, I would dismiss Defendant Stone’s qualified immunity
appeal regarding Plaintiff’s claim of deliberate indifference under 42 U.S.C. § 1983, and deny
qualified immunity to Defendant McGuckin regarding Plaintiff’s excessive force claim.
