                                ON REHEARING

                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 12-6882


JAMES WILLIAMS,

                  Plaintiff - Appellee,

          v.

L. CALTON,

                  Defendant – Appellant,

          and

B. CALTON; CAPTAIN LKU; TERRY O’BRIEN; LALOUDE, Staff
Counselor; CRUM; SHOEMAKER; CALTON, (brother to B. Calton);
CAMPBELL; DELORES; WILLIS; MR. CHAMBERS; LALONDE,

                  Defendants.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       Glen E. Conrad, Chief
District Judge. (7:10-cv-00075-GEC-RSB)


Submitted:   December 12, 2013                Decided:   December 19, 2013


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.
James J. O’Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant. James Williams, Appellee Pro Se.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             James       Williams       filed        a     Bivens 1     action          against

Correctional        Officer      L.    Calton,       charging         that   Calton        used

excessive force against him during an altercation that occurred

in   February      2008    while      Williams       was    incarcerated           at   United

States Penitentiary Lee in Jonesville, Virginia.                             Finding that

Calton    violated       Williams’      Eighth       Amendment        rights,       the    jury

awarded $1000 in compensatory damages to Williams but did not

award punitive damages.                Pursuant to Fed. R. Civ. P. 50(b),

Calton moved for judgment as a matter of law or for a new trial,

arguing, as he had in earlier motions, that he was entitled to

qualified immunity and that Williams failed to establish that he

acted     with     the    malicious      and       sadistic    intent        necessary      to

support an Eighth Amendment claim.                        The district court denied

Calton’s motion and Calton appealed, challenging the denial of

his Rule 50(b) motion.

             Initially,       we      affirmed      the    district      court’s        order.

Before the mandate issued, however, Calton filed a petition for

panel rehearing.          While the rehearing petition was pending, this

court     issued    Hill    v.     Crum,     727     F.3d     312     (4th    Cir.      2013).

Because     Hill     constitutes        an   intervening         change       in    law,    we


      1
       Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).



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granted Calton’s petition for panel rehearing.                            For the reasons

that       follow,    we     vacate       the    district       court’s     order   denying

Calton’s      Rule     50(b)    motion,         and    remand      with   instructions      to

enter judgment in favor of Calton.

              We review the denial of a Rule 50(b) motion de novo,

viewing       the    evidence        in    the       light    most    favorable     to     the

prevailing party and affirming the denial of the motion unless

the jury lacked a legally sufficient evidentiary basis for its

verdict.       Bunn v. Oldendorff Carriers GmbH & Co. GH, 723 F.3d

454, 460 n.4 (4th Cir. 2013).                         Viewed in the evidence most

favorable to Williams, the evidence showed that when Williams,

who was being escorted in restraints, resisted entering a cell,

Calton slammed his head into the cell door and then shoved him

to the floor.           Williams sustained a “minor” and “superficial”

1.5    inch    scalp    laceration         requiring         six   staples   and    a    small

half- to one-inch abrasion on his back. 2

              In Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994) (en

banc),      this     court    held    that,      “absent       the   most    extraordinary

circumstances, a plaintiff cannot prevail on an Eighth Amendment

excessive force claim if his injury is de minimis.”                                     Id. at


       2
       Williams’ other claims of injury are unsupported by the
record. “While we must construe the evidence in the light most
favorable to [Williams], we cannot construe what does not
exist.” Hill, 727 F.3d at 323.



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1263.    Three days after Williams filed his initial complaint,

however, the Supreme Court handed down Wilkins v. Gaddy, 559

U.S. 34 (2010), abrogating Norman and stating that there was no

injury threshold for excessive force claims.            However, because

“Norman and its progeny were controlling in the Fourth Circuit”

when the incident in this case occurred, Williams’ excessive

force   claim   and   Calton’s   qualified   immunity   defense   must   be

analyzed under the standards established by those cases.            Hill,

727 F.3d at 322.

           We conclude that, under the legal standards in place

when the incident occurred, a reasonable officer in Calton’s

position would not have understood his actions to have violated

Williams’ constitutional rights.         Id. at 321-25.    Consequently,

Calton is entitled to qualified immunity.

           For these reasons, the district court’s order denying

Calton’s Rule 50(b) motion is vacated and the case is remanded

to the district court for the entry of judgment in favor of

Calton on the basis of qualified immunity.              We dispense with

oral argument because the facts and law are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                   VACATED AND REMANDED




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