                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-6759


WILLIE WILLIAMS,

                  Plaintiff - Appellant,

             v.

VINCENT COLLIER, Cpt-Supervisor; OFFICER JACKSON; LIEUTENANT
RANDLE,

                  Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:06-cv-01043-TSE-TRJ)


Submitted:    June 8, 2009                       Decided:    July 22, 2009


Before TRAXLER,     Chief    Judge,   and   NIEMEYER   and   KING,   Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Willie Williams, Appellant Pro Se.    John Adrian Gibney, Jr.,
Thomas Douglas Lane, THOMPSON MCMULLAN PC, Richmond, Virginia,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Willie      Williams,        a    Virginia      prisoner,       appeals       the

district court’s grant of summary judgment to Vincent Collier,

Delvin Jackson, and Challoughlczilczise Randle on Williams’s 42

U.S.C.     § 1983       (2006)     claims          for    various    Eighth        Amendment

violations,        as    well     as     the       dismissal    with        prejudice       of

Williams’s claims against “Officer Crowin.”                         On appeal, Williams

reiterates the merits of his claims, argues that the district

court erred in denying his motions for discovery and appointment

of counsel, and contends that Crowin was improperly dismissed

from   the    complaint.          Williams         also   requests    that       counsel    be

appointed     in    this   Court.         Appellees         reassert       the   facts     and

arguments      stated      in     their       respective       motions       for     summary

judgment     before      the     district      court.        For     the    reasons      that

follow, we vacate in part, affirm in part, remand for further

proceedings, and authorize the court to reconsider the issue of

appointing counsel.

             We review a district court’s order granting summary

judgment de novo and view the facts in the light most favorable

to the nonmoving party.                Rowzie v. Allstate Ins. Co., 556 F.3d

165, 167 (4th Cir. 2009).               Summary judgment is appropriate when

no genuine issue of material fact exists and the moving party is

“entitled to judgment as a matter of law.”                            Fed. R. Civ. P.

56(c).       Summary judgment will be granted unless a reasonable

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jury   could    return       a    verdict   for       the     nonmoving     party    on    the

evidence presented.              Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986).

              A party cannot create a genuine issue of material fact

through speculation or a compilation of inferences.                                Emmett v.

Johnson, 532 F.3d 291, 297 (4th Cir. 2008).                          However, “[i]t is

not our job to weigh the evidence, to count how many affidavits

favor the plaintiff and how many oppose him, or to disregard

stories that seem hard to believe.”                       Gray v. Spillman, 925 F.2d

90,    95      (4th    Cir.        1991).             Instead,       such     credibility

determinations are within the province of the jury.                                Id.; see

Anderson, 477 U.S. at 255.

              Moreover,      before       summary         judgment    may    properly      be

entered, the nonmoving party “must be afforded both notice that

the motion is pending and an adequate opportunity to respond.”

Portland Retail Druggists Ass’n v. Kaiser Found. Health Plan,

662    F.2d    641,    645       (9th    Cir.       1981).      Implicit      in    such   an

“opportunity to respond is the requirement that sufficient time

be afforded for discovery necessary to develop facts essential

to justify a party’s opposition to the motion.”                             Id. (internal

quotation       marks,           alterations           and      citations          omitted).

Accordingly,      “summary         judgment         [must]     be   refused       where    the

nonmoving      party     has       not    had       the      opportunity     to     discover



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information that is essential to his opposition.”                              Anderson, 477

U.S. at 250 n.5.

            To    make   out       a   claim        of    excessive      force       under    the

Eighth    Amendment,         Williams         must       show     that    the        Defendants

“inflicted       unnecessary           and     wanton           pain     and     suffering.”

Whitley v.   Albers,      475      U.S.       312,       320   (1986).         This       question

turns on “whether force was applied in a good faith effort to

maintain or restore discipline or maliciously and sadistically

for the very purpose of causing harm.”                          Id. at 320-21 (internal

quotation    marks     and    citation         omitted).           The    excessive          force

inquiry   requires       evaluation           of    “whether      the     prison          official

acted with a sufficiently culpable state of mind (subjective

component)       and   whether         the    deprivation          suffered          or    injury

inflicted    on    the   inmate         was    sufficiently            serious       (objective

component).”       Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.

1996).    When determining the subjective component, we consider

“such factors as the need for the application of force, the

relationship between the need and the amount of force that was

used, and the extent of injury inflicted.”                         Whitley, 475 U.S. at

321   (internal        quotation         marks,           alterations          and        citation

omitted).

            “[A]bsent        the       most        extraordinary         circumstances,          a

plaintiff cannot prevail on an Eighth Amendment excessive force

claim if his injury is de minimis.”                        Norman v. Taylor, 25 F.3d

                                               4
1259,     1263        (4th   Cir.     1994)      (en    banc).            Extraordinary

circumstances are present when “the force used [is] of a sort

repugnant to the conscience of mankind . . . or the pain itself

[is] such that it can properly be said to constitute more than

de minimis injury.”            Id. at 1263 n.4 (internal quotation marks

and     citation       omitted).          Otherwise,    in    determining        whether

injuries are de minimis, we generally consider the following:

the context in which the injuries were sustained; whether the

inmate sought medical care; whether the injuries were documented

in    medical    records;      and   whether     the    documented        injuries    are

consistent with the application of the amount of force necessary

under the particular circumstances.                    See generally Taylor v.

McDuffie, 155 F.3d 479, 484-85 (4th Cir. 1998).

               It is clear from the record that genuine issues of

material fact exist regarding both the necessity of the force

used by Collier against Williams and the extent of Williams’s

injuries.        Though some of Williams’s averments — that he was

calm while being escorted to administrative segregation and that

Collier’s       actions      were    an    unprovoked    attack       —    may     strain

credulity, we are not in a position “to disregard stories that

seem    hard     to    believe.”       Gray,     925   F.2d    at   95.      Moreover,

Williams       repeatedly     sought       discovery    in    order   to     prove    his

allegations, but was denied it by the district court.                            Williams

contended that the incident in question occurred directly in

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front of a mounted camera and that pictures of the incident were

held by the jail.          Williams filed repeated motions to secure

these     photographs.        However,       rather      than    addressing       these

motions on their merits, the district court denied them, stating

that “it [was] premature to allow discovery before ruling on the

pending Motion for Summary Judgment filed by defendants.”                          Such

a conclusion was in error.            See Anderson, 477 U.S. at 250 n.5

(noting     that    summary    judgment       may     only      be    granted     where

nonmoving party had opportunity for discovery).

            Similarly,     genuine     issues       of     material       fact    exist

regarding the extent of injuries suffered by Williams.                           Though

the evidence submitted by the Defendants indicates that Williams

suffered a minor cut over his eye, Williams avers that he now

suffers from permanent nerve damage to his right eye.                           While a

small cut would certainly be considered a de minimis injury,

therefore    barring     Williams’s   recovery,          permanent      nerve    damage

may not be.        Cf. Taylor, 155 F.3d at 484-85.                   However, because

the district court denied Williams’s motions seeking discovery

of his medical records, Williams is forced to rely solely on his

own affidavits as proof of his injury.                 As stated before, it is

not the province of the trial court at summary judgment to make

such determinations of credibility.                 See Gray, 925 F.2d at 95.

Accordingly, as genuine issues of material fact exist regarding

both the force used by Collier and the extent of Williams’s

                                         6
injuries,       and     Williams      was    not      given     an     opportunity      for

discovery, the district court erred in granting summary judgment

on this claim.          Therefore, the order granting summary judgment

for   Collier         and    Jackson    is       vacated,       and    we    remand     for

appropriate discovery and for such other proceedings as may be

warranted,       with       authorization        for     the     district       court      to

reconsider its denial of the appointment of counsel.

               Our review of the record indicates that the district

court did not err in granting summary judgment for Lieutenant

Randle    on    Williams’s      claim       arising      out    of    time   spent    in   a

restraint      chair.        Though    issues      of    fact   may    exist    regarding

Williams’s      behavior       while    in    the       restraint      chair,    Williams

failed to present evidence of a sufficiently serious injury or

deprivation to survive summary judgment.                       To the extent Williams

raises an excessive force claim, the court correctly determined

that Williams “failed to establish that he suffered anything

more than a de minimis injury as the result of his restraint.”

To the extent Williams raised a more general Eighth Amendment

claim, we observe that a prisoner’s exposure to human waste may

give rise to an Eighth Amendment violation.                          See, e.g., DeSpain

v. Uphoff, 264 F.3d 965, 974-75 (10th Cir. 2001) (collecting

cases).        Williams failed, however, to demonstrate an “extreme

deprivation” sufficient to constitute such a violation.                                 See

Williams, 77 F.3d at 761 (recognizing that meeting objective

                                             7
component of excessive force claim — that deprivation suffered

or   injury       inflicted    was     “sufficiently          serious”       —    “is   less

demanding than that necessary for [a] conditions-of-confinement”

claim).       Thus,    the     court      did    not    err       in    granting    summary

judgment to Randle on this issue.

              Williams        next     challenges           the        district    court’s

dismissal     with    prejudice      of    his   claims       against       Crowin.     The

record is unclear when Officer Crowin was added as a defendant.

He was mentioned once in the complaint, as the officer Williams

requested to release him from the restraint chair, but was never

named   as    a    defendant    or    mentioned        in   the        amended   complaint,

filed in response to the district court’s order that Williams

“particularize and amend his complaint . . . by (i) naming every

person he wishes to include as a defendant.”                           As Williams failed

to include Crowin in this amended complaint, failed to allege

facts sufficient to state a constitutional claim against him,

and failed to effect service of the amended complaint upon him,

we find that the district court did not err in dismissing any

claims against him with prejudice.

              We also authorize the court, on remand, to reconsider

appointing counsel to represent Williams for discovery and other

proceedings.          See     28     U.S.C.      § 1915(e)(1)            (providing     that

district court “may request an attorney to represent any person

unable to afford counsel”).                 Williams’s obligations on remand

                                            8
will   likely        involve    complex    issues,        including    discovery      and

review of medical records, securing expert testimony, and the

nuances of Eighth Amendment jurisprudence — all difficult to

address and properly present without the aid of counsel.                              See

Whisenant       v.    Yuam,     739    F.2d        160,   163-64   (4th    Cir.     1984)

(directing        district      court     to       appoint   counsel      for   pro    se

plaintiff in § 1983 action because “exceptional circumstances”

were present and plaintiff was “relatively uneducated generally

and totally uneducated in legal matters”), abrogated in part by,

Mallard    v.     United      States    Dist.       Court,   490   U.S.   296     (1989);

Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) (observing

that district court should appoint counsel if “a pro se litigant

has colorable claim but lacks the capacity to present it”); see

also McEachin v. McGuinnis, 357 F.3d 197, 205 (2d Cir. 2004)

(instructing district court to consider appointing counsel on

remand to represent pro se plaintiff when action “may present

complex legal issues”).

             We      accordingly       vacate       the   district    court’s      orders

granting summary judgment to Collier and Jackson and denying

Williams’s      motions       for     discovery      of   photographs     and     medical

records, affirm the remainder of the district court’s orders,

and remand the case for further proceedings consistent with this

opinion.     Because we remand for further proceedings, we deny as

moot Williams’s motion in this Court for appointment of counsel.

                                               9
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 IN PART,
                                                              AND REMANDED




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