                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-6843


WALLY BOONE,

                Plaintiff - Appellant,

          v.

C.D. EVERETT, K-9 Officer; RODRIGUEZ, Sergeant,

                Defendants - Appellees,

          and

CORIZON,   contractors   in  the  employment   of  Virginia
Department of Corrections Medical Department; MS. SIDI; MS.
JACKSON; MS. M. WOODRUFF,

                Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:14-cv-01619-AJT-TCB)


Submitted:   September 28, 2016             Decided:   October 21, 2016


Before TRAXLER, KEENAN, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Wally Boone, Appellant Pro Se. John Michael Parsons, Assistant
Attorney General, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Wally    Boone     appeals     the   district      court’s   order      granting

Officer    C.D.   Everett     and    Sergeant    L.     Rodriguez’s     motion   for

summary judgment and denying relief on his 42 U.S.C. § 1983

(2012)    complaint.      Boone’s      complaint      raises     Eighth   Amendment

excessive force claims.             In his complaint, Boone alleges that:

(1) Everett slammed Boone’s head into a wall, threw him on the

floor, jumped on top of him, and choked him until he became

unconscious,      and   (2)   Rodriguez       dragged    Boone    to   the   medical

department while threatening to drop him and allowing Boone’s

genitals to remain exposed. *

     The district court granted Defendants’ motion for summary

judgment.     We affirm in part, vacate in part, and remand for

further proceedings.

     We review a district court’s award of summary judgment de

novo, viewing the facts and inferences reasonably drawn from

those facts in the light most favorable to the nonmoving party.

Core Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d 310, 320 (4th

     * Boone also appeals the district court’s dismissal of his
deliberate indifference claim against Nurse Sidi.     But Boone
does not challenge the district court’s sole dispositive ruling
on the claim against Sidi—that Boone failed to exhaust his
administrative remedies against Sidi.    Thus, Boone has waived
appellate review of that ruling.    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).



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Cir. 2014).         A court can only award summary judgment when no

genuine dispute of material fact remains and the record shows

that the moving party is entitled to judgment as a matter of

law.    Fed. R. Civ. P. 56(a).                  When the moving party makes an

initial showing that there is no genuine issue of material fact,

the nonmoving party must “go beyond the pleadings” and rely on

some form of evidence, including affidavits, to demonstrate that

a   genuine    issue   of     material     fact    exists.       Celotex      Corp.    v.

Catrett, 477 U.S. 317, 324 (1986).                  Thus, to withstand summary

judgment, the nonmoving party must produce competent evidence

that goes beyond “[c]onclusory or speculative allegations” and

relies on more than “a mere scintilla of evidence.”                      Thompson v.

Potomac    Elec.    Power     Co.,   312    F.3d    645,   649    (4th      Cir.    2002)

(internal quotations omitted).

       When   reviewing       the    evidence      submitted,     a   court        cannot

“credit[ ] the evidence of the party seeking summary judgment

and fail[ ] properly to acknowledge key evidence offered by the

party opposing that motion.”               Tolan v. Cotton, 134 S. Ct. 1861,

1867 (2014).        Such conduct would improperly weigh the evidence

and resolve disputed issues in the moving party’s favor.                              Id.

But    when   the    record    “blatantly         contradict[s]”      the    nonmoving

party’s version of events, a court can adopt the moving party’s

version.      Scott v. Harris, 550 U.S. 372, 380 (2007) (relying on



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unaltered videotape evidence that contradicted nonmoving party’s

claim to adopt moving party’s version of facts).

         Here, the issue for summary judgment implicates the Eighth

Amendment, which protects prisoners from “unnecessary and wanton

infliction        of    pain.”      Whitley        v.   Albers,    475     U.S.   312,     319

(1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S.

34 (2010).        An Eighth Amendment claim for excessive force, like

Boone’s     claim,       requires      the   prisoner         to   prove    the    official

possessed a culpable state of mind (subjective component) and

caused the prisoner a sufficiently serious deprivation or injury

(objective component).              Williams v. Benjamin, 77 F.3d 756, 761

(4th Cir. 1996).

         The subjective component requires a prisoner to prove the

official     acted       “maliciously        and        sadistically       for    the     very

purpose of causing harm” rather than “in a good faith effort to

maintain or restore discipline.”                        Whitley, 475 U.S. at 320-21

(internal quotation marks omitted).                      Not every malevolent touch

by   a    prison       guard   gives    rise       to    an   excessive     force       claim.

Hudson v. McMillian, 503 U.S. 1, 9 (1992).                               Factors showing

malicious or sadistic intent include:

            (1)    the need for force,
            (2)    the degree of force used in relation to the need
                   for force,
            (3)    the existence of a threat reasonably perceived by
                   the official,
            (4)    any efforts made to lessen the severity of a
                   forceful response, and

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             (5)   the extent of the prisoner’s injury.

Id. at 7.

      The       objective        component    measures       the    force       used   against

“contemporary          standards       of   decency.”        Hudson,       503    U.S.   at   8

(internal quotations omitted).                      When a prisoner satisfies the

subjective standard, “contemporary standards of decency always

are violated.”             Id. at 9.

      Turning first to the excessive force claim against Everett,

we    hold      that       the    district     court’s       opinion       contains      flaws

necessitating remand.                First, the opinion does not mention the

evidence Boone proffered to support his claim, which included:

(1)   his    affidavit           attesting    to    his   account     of    the    incident,

(2) his prison grievances detailing injuries consistent with his

allegations, and (3) affidavits from three other inmates who

attested they observed Everett slam Boone’s head into a wall and

choke    him.          A    court    may    only    reject    the    nonmoving         party’s

evidence,        such       as    Boone’s     affidavits       and     grievances,        when

uncontroverted evidence in the record “blatantly contradict[s]”

it.      Scott, 550 U.S. at 378.                    No such blatant contradiction

exists here.

      By     overlooking            Boone’s   evidence,       the      district        court’s

opinion offers a version of the facts that almost exclusively

relies     on    Defendants’         account.        Boone    relied       on    evidence     he

submitted to allege that Everett slammed Boone’s head against a

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wall and choked him.       Everett denied those allegations.               Despite

this    direct     contradiction,        the     opinion      adopts     Everett’s

allegations without crediting Boone’s allegations.                     See Tolan,

134 S. Ct. at 1867 (finding that the court erred in its review

of a summary judgment motion when it “did not credit directly

contradictory      evidence”    to   the     nonmoving     party).      The   court

therefore did not view the facts in the light most favorable to

the nonmoving party as required for summary judgment review.

Id. at 1866; Core Commc’ns, Inc., 744 F.3d at 320.

       Thus, the district court did not apply the correct standard

when viewing the record, and our review shows a genuine dispute

of material fact exists as to the need for and amount of force

Everett used.      Accordingly, we vacate the award of judgment for

Everett and remand for further proceedings.

       We   next   turn   to   Boone’s       excessive     force   claim   against

Sergeant     Rodriguez.        Rodriguez       made   an   initial     showing   to

support summary judgment through his affidavit.                      In response,

Boone offered nothing more than his conclusory allegations that

Rodriguez dragged him, threatened to drop him, and allowed his

genitals to remain exposed.              In one of the affidavits Boone

submitted, the witness attested to watching officers drag Boone

with his genitals exposed, but the witness did not identify the

officer or explain why the officer dragged Boone.                    Without more

than “a mere scintilla of evidence,” Boone has not raised a

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genuine dispute of material fact for whether Rodriguez acted

maliciously or sadistically.         Thompson, 312 F.3d at 649.           Nor

has Boone offered any evidence to make the objective showing.

Thus, although we vacate the district court’s grant of summary

judgment to Everett, we affirm the district court’s grant of

summary judgment to Rodriguez.

     We further deny Boone’s motion to appoint counsel at this

stage.     We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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