                                 PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 12-6705


DEMETRIUS HILL,

                  Plaintiff − Appellee,

           v.

C.O. CRUM,

                  Defendant – Appellant,

           and

TERRY O’BRIEN, Warden; MR. STRICKLAND, Associate Warden; MR.
WILSON, Captain; LT. STIGER; PULIVAR, Counselor; COUNSELOR
MULLINS; MS. HALL, Case Manager; NURSE MEADE; DR. ALLRED;
DR. ROFF, Health Administrator; C.O. T. TAYLOR; C.O. TAYLOR;
C.O. MARTIN,

                  Defendants.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       James C. Turk, Senior
District Judge. (7:08-cv-00283-JCT-RSB)


Argued:   March 22, 2013                      Decided:   August 14, 2013


Before NIEMEYER, AGEE, and THACKER, Circuit Judges.


Reversed and remanded by published opinion.  Judge Agee wrote
the majority opinion, in which Judge Niemeyer joined.   Judge
Thacker wrote a dissenting opinion.
James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant.     Arlene Sokolowski, SOKOLOWSKI LAW
OFFICE, North Royalton, Ohio, for Appellee.




                              2
AGEE, Circuit Judge:

     Plaintiff Demetrius Hill (“Hill”) sued Correctional Officer

William Crum (“Crum”) pursuant to Bivens v. Six Unnamed Agents,

403 U.S. 388 (1971), alleging that Crum used excessive force

against   him   in   violation   of   Hill’s   Eighth   Amendment   rights.

Claiming he was entitled to qualified immunity, Crum appeals the

district court’s denial of his Rule 50(b) motion for judgment as

a matter of law.       For the reasons that follow, we reverse the

district court’s order denying Crum’s motion for judgment as a

matter of law, and remand with instructions to enter judgment in

favor of Crum.



                         I. Factual Background

     At all times relevant to this appeal, Hill was an inmate in

the U.S. Penitentiary Lee (“USP Lee”) in Jonesville, Virginia.

Hill shared a cell with Delmont Logan (“Logan”). 1         On November 1,

2007, Logan broke a fire sprinkler in their cell, which caused

the cell to flood.      Hill and Logan submitted to hand restraints

in order to be moved to a new cell so the damage could be

repaired.   Logan was first escorted by a correctional officer to

     1
       Crum disputes Hill’s version of events. However, because
the district court denied Crum’s Rule 50(b) motion for judgment
as a matter of law, we review the facts in the light most
favorable to Hill, the non-movant.    Konkel v. Bob Evans Farms,
Inc., 165 F.3d. 275, 279 (4th Cir. 1999).



                                      3
a different cell, which left Crum alone in the flooded cell with

Hill.

      After Logan was removed, Crum shoved Hill and required him

to   leave   his    legal    material    in   the   flooded    cell.      Without

provocation,       Crum   then   assaulted     Hill,   punching   him     in   the

abdomen and ribs, and elbowing the side of his head.                   During the

assault, Crum shouted at Hill, “break another sprinkler, I’ll

break your neck.”           (J.A. 219).       The assault lasted about two

minutes before Crum moved Hill to a holding cell, knocking his

head against a gate on the way out.              The prison staff kept Hill

in   ambulatory      restraints    for    seventeen    hours    following      the

assault. 2    Hill alleged that as a result of Crum’s assault, he

suffered a bruised rib, temporary dizziness, and a “vicious,

vicious headache.”        (J.A. 150-51, 223).

        About an hour after the assault, prison officials recorded

two videos of Hill and Logan in their new cell.                        The videos

depict Hill standing in his cell.             While he does not seem to be




      2
       The captain and the warden, not Officer Crum, decide how
long an inmate remains in ambulatory restraints. Hill does not
contend the ambulatory restraint confinement is part of his
cause of action against Crum.



                                         4
in visible distress, he alleged he had a swollen eye, although

that is not apparent in any of the videos. 3

     Theresa Meade (“Meade”), a registered nurse, examined Hill

after he was moved to the holding cell.                          Meade found that Hill

had “[n]o injuries,” (J.A. 192), and documented her assessment

in   a   contemporaneous         report,       “Inmate         Injury     Assessment       and

Followup,”      (J.A.     201).          Meade          testified       that     while     her

examination      focused        on    injuries          caused     by     the     ambulatory

restraints,      it     would    have        included      notes        regarding     Hill’s

dizziness, feelings of pain, inability to stand or understand

had she noticed any problems, or if he had complained of any

injuries.        Hill’s     medical           records       did     not    indicate        any

complaints of injuries resulting from his alleged assault by

Crum.

     On April 9, 2008, Hill brought a pro se Bivens suit in the

United     States     District        Court       for    the     Western        District    of

Virginia      against     eleven       USP     Lee      prison      officials       alleging

various deprivations of his rights.                        Hill’s complaint did not

name Crum as a defendant or claim any injuries arising out of

the November 1, 2007 assault; however, he did complain about the

length   of    time     during       which    he     was   subjected       to     ambulatory

     3
       The video does not show the alleged assault and begins
running more than an hour after the assault occurred.        Hill
stands for much of the video and does not appear to be in pain.



                                              5
restraints that day.            On April 18, 2008, Hill, still proceeding

pro se, amended his pleading to include a separate excessive

force claim against Crum based on the alleged assault in the

flooded cell on November 1, 2007. 4

       Initially, the district court sua sponte dismissed Hill’s

excessive force claim against Crum for failure to state a claim,

pursuant to 28 U.S.C. § 1915A(b)(1). 5                     In doing so, the court

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

banc), 6 which held, “absent the most extraordinary circumstances,

a   plaintiff        cannot   prevail   on       an   Eighth     Amendment     excessive

force claim if his injury is de minimis.”                       Id. at 1263.      Finding

that Hill did not allege that Crum’s assault had caused more

than       a   de   minimis   injury,   the      district       court    dismissed   his

claim.         Hill, still without counsel, appealed.

       While Hill’s case was pending on appeal to this Court, the

Supreme Court decided Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct.

1175       (2010),    holding    that   there         is   no     de    minimis   injury
       4
       Although Hill and other plaintiffs brought multiple claims
against multiple defendants in the district court, Hill’s
excessive force claim against Crum is the only claim pertinent
to this appeal.
       5
       Section 1915A(b)(1) directs a district court to identify
and dismiss a civil action filed by a prisoner that is
“frivolous, malicious, or fails to state a claim upon which
relief may be granted.”
       6
       Abrogated by Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct.
1175 (2010).



                                             6
threshold for an excessive force claim, specifically rejecting

the Fourth Circuit’s approach in Norman.                     In light of Wilkins,

this   Court      vacated    the    district     court’s     dismissal         of    Hill’s

excessive force claims and remanded the case to the district

court.      See Hill v. O’Brien, 387 F. App’x 396 (4th Cir. 2010)

(unpublished); (J.A. 86-87).

       On remand, Crum filed motions to dismiss and for summary

judgment on several grounds, including that he was entitled to

qualified immunity.          The district court ruled that Crum was not

entitled to qualified immunity because a trier of fact could

conclude that Hill’s Eighth Amendment rights had been violated.

Crum   answered      Hill’s    complaint,        denied     liability,         and    again

moved for summary judgment based on qualified immunity, which

was again denied based on the same rationale that it “cannot

credibly     be    claimed    that    Defendants      were   not       on    notice    that

unnecessarily        inflicting      pain   on    the     Plaintiff         violated   his

constitutional rights.”             (J.A. 136).      Hill obtained counsel and

the case proceeded to trial by jury.

       At   trial,    Crum    moved    pursuant      to   Federal       Rule    of    Civil

Procedure 50(b) for judgment as a matter of law at the close of

Hill’s case and again at the close of all the evidence on the

basis of qualified immunity.                The district court denied both

motions,     and     the    jury    returned     a   verdict      in    Hill’s       favor,

finding     Crum    liable    and    awarding    $25,000     in    damages.           (J.A.

                                            7
207).     After trial, Crum moved for a new trial under Rule 59(a)

and again for judgment as a matter of law under Rule 50(b) on

the ground of qualified immunity, arguing that his conduct did

not   violate    a   clearly   established    constitutional     right    under

Norman at the time of the alleged assault.

      The district court granted Crum’s motion for a new trial on

all issues, stating that “$25,000 in compensatory damages for a

bruised    rib   and   an   impermanent      headache   simply   shocks    the

conscience of the Court.         It is a miscarriage of justice that

cannot stand.” 7     (J.A. 227, 233).




      7
       Hill did not file a cross-appeal of the district court’s
grant of Crum’s motion for a new trial.    As a consequence, we
must treat that trial as a nullity.   See United States ex rel.
Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 405
n.18 (4th Cir. 2012) (“Where a motion for new trial has been
sustained, the issues stand as though they had never been tried.
The cause is to be tried de novo. The whole case, including the
issues of fact at the former trial, is open for hearing and
determination.”) (quoting 66 C.J.S. New Trial § 331 (2011)
(footnotes omitted).

     Despite the fact that the district court set aside the
verdict and ordered a new trial, Hill’s counsel stated on brief
that “[t]he jury found that the injuries were not de minimis,”
(Br. of Appellee at 18), and “a jury has already determined that
Defendant Crum used an amount of force that was repugnant to
their conscience,” (Br. of Appellee at 18-19). The jury did not
return a special verdict on either point, and we have identified
no support in the record for counsel’s statements regarding the
jury’s “findings.”     Notwithstanding the dubious veracity of
counsel’s claims, however, any findings that were made by the
jury are now void by the grant of a new trial.



                                      8
      Although granting the new trial motion, the district court

denied Crum’s motion for judgment as a matter of law on the

issue     of   qualified    immunity,       again   stating   that   “[i]t   is

apparent—and cannot be credibly denied—that a reasonable officer

in   Crum’s    position    in   2007   would   have   known   that   repeatedly

punching a restrained prisoner in the stomach, ribs, and head

for a sustained period, for no other reason but to punish him

for a behavioral issue, was unlawful in light of pre-existing

law.” (J.A. 225).          As with its earlier rulings, the district

court cited no authority for its decision.              Crum timely appealed

the denial of his Rule 50(b) motion. 8

      28 U.S.C. § 1291 affords this Court jurisdiction over final

orders of the district court.           Pursuant to § 1291, the Court has

jurisdiction to hear the appeal of the denial of a qualified

immunity defense, before there is a final order, if the denial

rests on a legal issue.           Valladares v. Cordero, 552 F.3d 384,

387-88 (4th Cir. 2009).           If, however, the appeal presents an

issue of the insufficiency of the evidence to raise a genuine

issue of material fact, this Court does not have jurisdiction

under § 1291 to consider such a claim.                Bailey v. Kennedy, 349

F.3d 731, 738 (4th Cir. 2003); see Johnson v. Jones, 515 U.S.


      8
       The district court has stayed further proceedings pending
this appeal.



                                        9
304,     319-20     (1995)       (“[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 pre-trial record sets forth a ‘genuine’ issue of fact

for    trial.”).          We    do     possess      jurisdiction      to    consider       this

appeal from the denial of qualified immunity to the extent that

Crum claims that his conduct did not violate clearly established

law.     See Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997)

(en banc) (“[W]e have jurisdiction over a claim that there was

no violation of clearly established law accepting the facts as

the district court viewed them.”).                     Because the district court’s

rejection of Crum’s qualified immunity defense turns only on a

question of law, it is subject to immediate appeal.                              Valladares,

552 F.3d at 387-88.



                                  II. Legal Background

       The    Supreme      Court       has    extended       the   application        of    the

Eighth       Amendment’s         prohibition         against       “cruel    and      unusual

punishments” to the treatment of prisoners by prison officials.

In this context, the Court has stated that the Eighth Amendment

forbids      “the    unnecessary             and    wanton     infliction        of   pain.”

Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v.

Wright,       430    U.S.        651     (1977)).         “When       prison       officials

maliciously         and        sadistically         use   force       to     cause      harm,

                                               10
contemporary standards of decency always are violated.”                                    Hudson

v. McMillian, 503 U.S. 1, 9 (1992) (quoting Whitley, 475 U.S. at

327).           “This    is    true    whether        or    not    significant          injury    is

evident.             Otherwise,       the   Eighth         Amendment      would     permit       any

physical          punishment,         no    matter         how     diabolic        or    inhuman,

inflicting less than some arbitrary quantity of injury.”                                   Id. at

9.

       The Hudson Court further stated

       [t]hat is not to say that every malevolent touch by a
       prison guard gives rise to a federal cause of action.
       The Eighth Amendment’s prohibition of cruel and
       unusual    punishments   necessarily   excludes    from
       constitutional recognition de minimis uses of physical
       force, provided that the use of force is not of a sort
       repugnant     to    the    conscience   of     mankind.

Id.        at     9-10        (citations      and          quotation        marks       omitted).

Referencing this statement in Hudson as its basis, the Fourth

Circuit         in    Norman    focused     on    the       extent     of    the    plaintiff’s

injury rather than the nature of the defendant’s force as the

threshold a plaintiff must cross to state an Eighth Amendment

claim. 9        The Norman court reasoned that “Hudson does not suggest,

much       less      hold,    that    the   extent         of    injury     is   irrelevant       to

whether excessive force has been employed and therefore that an


       9
       The inmate, Norman, alleged that the defendant swung his
keys at him and “caught his right hand, hitting him on his thumb
with the cell keys causing his hand to swell[].”      Norman, 25
F.3d at 1260-61 (brackets omitted).



                                                 11
excessive force claim cannot be defeated by evidence that the

plaintiff's injury was de minimis.”                      Norman, 25 F.3d at 1262-63.

We     held     in     Norman        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

1263.

       Following        the    Norman       decision,        until        abrogated     by      the

Supreme       Court      in     Wilkins          in   2010,         the     Fourth      Circuit

consistently          held    that    a     plaintiff     could      not     prevail       on    an

excessive        force        claim,        “absent       the        most      extraordinary

circumstances,”         if     he    had    not   suffered      more       than    de   minimis

injury.        “Extraordinary           circumstances”         were       defined     as     those

situations       in     which       the     force     used     is     “repugnant        to      the

conscience of mankind,” or the pain suffered is so significant

that it constitutes more than de minimis injury.                                  Id. at 1263

n.4.

       In     Riley    v.     Dorton,      115    F.3d   1159       (4th    Cir.    1997),       we

observed       the      continuing          validity      of       the     Norman       holding,

extending that holding to pre-trial detainees.                                Riley, a pre-

trial detainee, alleged that the defendant used excessive force

against him while he was handcuffed and awaiting booking at the

police station.             115 F.3d at 1161.            Specifically, Riley alleged

that the defendant inserted the tip of his pen a quarter of an

inch into Riley’s nose and threatened to rip his nose open.                                     Id.

                                                 12
He further alleged that the defendant slapped him in the face

with “medium” force.          Id.    In determining that the defendant’s

conduct was not actionable, we applied the holding in Norman

that    “a    plaintiff     cannot    prevail    on    an    Eighth     Amendment

excessive force claim if his injury is de minimis” to Fourteenth

Amendment excessive force claims of pre-trial detainees.                   Id. at

1166 (quoting Norman, 25 F.3d at 1263).                     We thus reiterated

“[a]n injury need not be severe or permanent to be actionable

under the Eighth Amendment, but it must be more than de minimis.

We   think    this   same     rule   applies    to   excessive     force   claims

brought      by   pre-trial    detainees.”           Id.    at   1167   (citation

omitted).

       In Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998), a pre-

trial detainee, Taylor, in “handcuffs and leg irons,” id. at

481, alleged that officers shoved a small wooden object into his

nose with such force that it caused a nose hemorrhage, shoved

the same wooden object into his mouth, which cracked his tooth,

hit him in the back of his head, and punched him in the ribs.

155 F.3d at 481.       Applying Norman and Riley, we affirmed summary

judgment for defendants on the basis that plaintiff suffered

only de minimis injury.         Id. at 484.

       Judge Murnaghan dissented in Taylor, contending that under

the Court’s holding in Norman, “officers in our circuit are free

to use excessive or unjustified force against inmates, so long

                                        13
as they are careful or fortunate enough to leave only minor

traces    of    their      blows.”        155     F.3d    at   487   (Murnaghan,     J.,

dissenting).         This was one of the “unacceptable results achieved

when a finding of de minimis injury is considered dispositive of

the   excessive       force    inquiry.”           Id.    at   486   (Murnaghan,      J.,

dissenting).         Despite Judge Murnaghan’s objections, Norman and

Taylor remained the settled law in the Fourth Circuit.

      Consistent        with       Norman,      Riley,     and      Taylor,     we   have

consistently applied the rule that a plaintiff cannot prevail on

an excessive force claim if his injuries were de minimis.                            See,

e.g., Stanley v. Hejirika, 134 F.3d. 629, 634-36 (4th Cir. 1998)

(reversing the district court and finding as a matter of law

that plaintiff’s bruising, swelling, and a loosened tooth were

de minimis); Hines v. Young, 142 F. App’x 780, 781 (4th Cir.

2005)    (unpublished)         (per   curiam)       (affirming       district    court’s

grant    of    summary      judgment      for     defendants     where    plaintiff’s

hairline       fracture       to    his    finger        required     little     medical

treatment      and    no   pain     medication      and    was   thus    de    minimis);

Germain v. Ruzicka, No. 99-6979, 2000 WL 139255, at *3 (4th Cir.

Feb. 8, 2000) (unpublished) (per curiam) (summary judgment in

favor of defendants was proper where plaintiff’s only alleged

injury, a severe headache, was clearly de minimis); Williams v.

Dehay, Nos. 94-7114, 94-7115, 1996 WL 128422, at *3 (4th Cir.

March    21,    1996)      (unpublished)          (per    curiam)    (affirming      that

                                             14
plaintiff’s   “[t]ransitory    back    and      shoulder   aches    of   limited

duration” caused by the defendant were de minimis). 10

     The dissent correctly observes that Stanley involved the

use of force that was at least arguably justified by a prison

security interest.      See post at [37] n.3.              Stanley, however,

like the myriad other cases from this Circuit decided in the

Norman line, recognized that the proper inquiry, pre-Wilkins,

was “whether the injury of which [the plaintiff] complains is

significant   enough,   when   viewed      in    its   factual     context,   to

amount to a violation of his right to be free from cruel and




     10
       District courts within our circuit have routinely applied
the Norman holding to excessive force claims. See e.g., Martin
v. Mathena, No. 7:08-cv-00573, 2009 U.S. Dist. LEXIS 3856, at
*5-6 (W.D. Va. Jan. 21, 2009) (dismissing excessive force claim
for failure to state more than a de minimis injury in which
inmate received a scratch with a small amount of blood as a
result of a dog bite); Lewis v. Green, No. RWT-08-2649, 2009 WL
2969584, at *4-5 (D. Md. Sept. 14, 2009) (scratches left by
alleged assault by prison guards constituted de minimis injury);
Smalls v. S.C. Dep’t of Corr., No. 6:09-2654-TLW-WMC, 2009 WL
5062393, *4 (D. S.C. Dec. 16, 2009) (injuries to eyes from
alleged mace use de minimis where plaintiff failed to seek
medical attention); Brown v. Spencer, No. 3:07-CV-61, 2008 WL
4763317, at *4 (N.D.W. Va. Oct. 29, 2008) (summary judgment
appropriate where plaintiff suffered only de minimis injuries
resulting from use of pepper spray); Chatman v. Anderson, No.
7:05 cv 0047, 2005 U.S. Dist. LEXIS 36560, *7-8 (W.D. Va. Aug.
26, 2005) (finding de minimis plaintiff’s neck pain and bruising
due to alleged choking incident); Garrett v. Bliley, No. 7:05 cv
00497, 2005 U.S. Dist. LEXIS 37610, *7-8 (W.D. Va. Sept. 23,
2005) (finding de minimis plaintiff’s “superficial scratch”
caused by correctional officer firing live round at another
inmate).



                                      15
unusual      punishment[.]”          Stanley,      134    F.3d    at    636     (emphasis

added).

       More to the point, however, the distinction referenced in

Stanley, and relied upon by the dissent, between excessive force

in    the    context      of    restoring    prison      order    versus      inflicting

punishment      on    a   nonviolent       inmate,    was   not    recognized       under

Norman or its following cases in the de minimis injury analysis.

For   example,       Norman,      Riley,    and   Wilkins    involved      cooperating

prisoners.      While there was some allegation in Taylor that the

plaintiff      was     not      cooperating       with   police,        there    was    no

suggestion that the plaintiff was involved in any disturbance

that justified the assault alleged in that case.

       The    Norman      court    specifically       declined     to    base     its   de

minimis injury rule on a prison security distinction because it

did “not base [its] conclusion on a separate conclusion that the

force used by Sergeant Taylor was in response to the disturbance

that Taylor alleges Norman was creating by yelling during the

prison role call.”             Norman, 25 F.3d at 1263 n.5.             Thus, the fact

that Hill alleged that he was not causing a disturbance is not

dispositive of the issue of qualified immunity.                          Moreover, the

dissent’s distinction for a “restrained and cooperative” inmate

cannot be found in the Norman line of cases.                             In fact, the

plaintiff in Riley was “handcuffed,” Riley, 115 F.3d at 1161,



                                            16
and in “handcuffs and leg irons” in Taylor, 155 F.3d at 481,

when the alleged assaults took place.

      The threshold requirement that a plaintiff suffer more than

a de minimis injury to state an excessive force claim was thus

settled law in this circuit until 2010, when the Supreme Court

in Wilkins abrogated Norman, Riley, and Taylor.                       In Wilkins, the

prisoner alleged that a corrections officer, Gaddy, “maliciously

and     sadistically”         assaulted       him   “without     any     provocation.”

Wilkins, 130 S. Ct. at 1177.                   Gaddy allegedly slammed Wilkins

onto the floor and “proceeded to punch, kick, knee and choke

[Wilkins] until another officer had to physically remove him

from [Wilkins].”         Id. (citations in original).                  As a result of

Gaddy’s force, Wilkins sustained “a bruised heel, lower back

pain, increased blood pressure, as well as migraine headaches

and   dizziness”       and     “psychological       trauma      and    mental   anguish

including      depression,          panic     attacks   and     nightmares      of   the

assault.”      Id.

      Wilkins’ complaint was filed in the district court for the

Western       District       of     North     Carolina,    which       dismissed     the

complaint for failure to state a claim pursuant to Norman.                           “In

order    to    state     an       excessive    force    claim    under    the    Eighth

Amendment, a plaintiff must establish that he received more than

a de minimis injury.”                Wilkins v. Gaddy No. 3:08CV138-01-MU,

2008 WL 1782372, at *1 (W.D. N.C., Apr. 16, 2008).                       The district

                                              17
court, which found Wilkins’ injuries no more severe than those

deemed de minimis in Taylor and Riley, also noted that Wilkins

failed     to   assert    that    his     injuries      had     required   medical

attention.      Id.   We summarily affirmed that conclusion on appeal

based on the district court’s rationale under Norman and its

progeny.     See Wilkins v. Gaddy, 308 F. App’x 696 (4th Cir. 2009)

(unpublished) (per curiam).

     Reversing the holding of this Court and abrogating Norman,

Taylor, and Riley, the Supreme Court stated “[a]n inmate who is

gratuitously     beaten   by     guards    does   not    lose    his   ability   to

pursue an excessive force claim merely because he has the good

fortune to escape without serious injury.”                    Wilkins, 130 S.Ct.

at 1178-79.     The Court also concluded that the

     Fourth Circuit’s strained reading of Hudson is not
     defensible.   This Court’s decision did not, as the
     Fourth Circuit would have it, merely serve to lower
     the injury threshold for excessive force claims from
     ‘significant’ to ‘non-de minimis’—whatever those ill-
     defined terms might mean. Instead, the Court aimed to
     shift the ‘core judicial inquiry’ from the extent of
     the injury to the nature of the force—specifically,
     whether it was nontrivial and ‘was applied . . .
     maliciously   and   sadistically  to    cause  harm.’

Id. at 1179 (quoting Hudson, 503 U.S. at 7).                   The Wilkins Court

clarified that the nature of the force, rather than the extent

of the injury, is the relevant inquiry.                       “Injury and force,

however, are only imperfectly correlated, and it is the latter

that ultimately counts. ”          Id. at 1178.         Thus, it is clear that


                                          18
the   de    minimis     injury    threshold       that     this   Court       (and    the

district      courts    within        this    circuit)     had    relied      upon     in

considering excessive force claims is no longer the appropriate

test.      The question , however, is whether Crum’s alleged conduct

which took place prior to the Supreme Court’s Wilkins decision,

is covered by qualified immunity.



                                  III. Analysis

                           A.     Standard of Review

      We review the district court’s denial of Crum’s Rule 50(b)

motion de novo.         Sloas v. CSX Transp., Inc., 616 F.3d 380, 392

(4th Cir. 2010).        We view the facts in the light most favorable

to Hill.     Id.

                                  B.         Analysis

      “Qualified immunity shields government officials from civil

liability     insofar    as     their    conduct    does    not   violate       clearly

established        statutory     or     constitutional      rights       of   which     a

reasonable person would have known.”                Trulock v. Freeh, 275 F.3d

391, 399 (4th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)).        Qualified immunity protects law enforcements

officers     from    liability    for     “bad    guesses    in   gray    areas”      and

ensures that they will be held liable only for violating bright-

line rules.         Braun v. Maynard, 652 F.3d 557, 560 (4th Cir.

2011).     It “operates to ensure that before they are subjected to

                                             19
suit, officers are on notice that their conduct is unlawful.”

Hope v. Pelzer, 536 U.S. 730, 731 (2002).

       In deciding whether a defendant is entitled to qualified

immunity, we examine (1) whether the facts illustrate that Crum

violated Hill’s constitutional right to be free from excessive

force; and, (2) if so, whether Crum’s conduct was objectively

reasonable in view of the clearly established law at the time of

the alleged event.          See Orem v. Rephann, 523 F.3d 442, 445 (4th

Cir. 2008) (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)). 11

Crum     does   not    dispute       the    first    prong,   that    there     is     a

constitutional        right    to    be    free     of   excessive    force.         His

argument is that he is entitled to qualified immunity because

Hill’s      claimed     constitutional            violation   was     not      clearly

established     at    the     time   of    the    assault.    Under    the     clearly

established law of the Fourth Circuit on November 1, 2007, we

must agree with Crum.


       11
        Pearson v. Callahan, 555 U.S. 223 (2009), clarified that
we are not required to look first at prong one:

       [w]hile the sequence set forth [in Saucier] is often
       appropriate, it should no longer be regarded as
       mandatory. The judges of the district courts and the
       courts of appeals should be permitted to exercise
       their sound discretion in deciding which of the two
       prongs of the qualified immunity analysis should be
       addressed first in light of the circumstances in the
       particular case at hand.

555 U.S. at 236.



                                            20
       For a right to be “clearly established,” in a qualified

immunity case, “the contours of the right must be sufficiently

clear that a reasonable officer would understand that what he is

doing violates that right.”             Wilson v. Layne, 526 U.S. 603, 615

(1999).     Therefore, in deciding whether the right was clearly

established,     we    must     determine      whether    an    official     in    the

defendant’s position knew or reasonably should have known that

the action he took violated the constitutional rights of the

plaintiff.      See id. at 614-15.            However, “[t]his is not to say

that   an   official    action     is    protected       by    qualified    immunity

unless    the   very   action    in   question     has    previously       been   held

unlawful, but it is to say that in the light of pre-existing law

the unlawfulness must be apparent.”              Id. at 615.

       “[W]e have long held that it is case law from this Circuit

and the Supreme Court that provide notice of whether a right is

clearly established.”           Lefemine v. Wideman, 672 F.3d 292, 298

(4th Cir. 2012), vacated on other grounds, 133 S. Ct. 9 (2012).

       In determining whether a right was clearly established
       at the time of the claimed violation, courts in this
       circuit ordinarily need not look beyond the decisions
       of the Supreme Court, this court of appeals, and the
       highest court of the state in which the cases arose.
       . . . If a right is recognized in some other circuit,
       but not in this one, an official will ordinarily
       retain the immunity defense.


Id. at 298-99 (quoting Edwards v. City of Goldsboro, 178 F.3d



                                         21
231, 251 (4th Cir. 1999) (internal quotation marks, alterations,

and citation omitted).

       As the Supreme Court made clear in Wilkins, Norman was an

incorrect reading of Hudson.                 Regardless of how we view Norman

in retrospect, however, we evaluate whether the right at issue,

for qualified immunity purposes, was clearly established at the

time of Crum’s conduct on November 1, 2007, three years before

the    Supreme    Court     decided    Wilkins.         See    Meyers     v.    Baltimore

Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013) (“[A] court . . .

must    determine      whether        the     right    at      issue      was   ‘clearly

established’ at the time of the officer’s conduct.”).                              At the

time of the alleged assault on Hill, Norman and its progeny were

controlling      in   the    Fourth     Circuit       and    had   been    since    1994.

Although Wilkins abrogated Norman in 2010, Wilkins can only be

applied prospectively in the context of a qualified immunity

analysis.        See Fields v. Prater, 566 F.3d 381, 390 (4th Cir.

2009)    (qualified         immunity        protects        defendants     from     being

“retroactively subject to significant penalties at law for which

they did not have proper notice”).                     In other words, the 2010

holding in Wilkins cannot be imputed retroactively to an officer

in this circuit whose allegedly tortious conduct predated the

Wilkins decision.           The applicable law for qualified immunity

purposes would be that in existence in 2007, the time of the

alleged assault.

                                             22
       In   2007     under      Norman,     a    reasonable        correctional      officer

would have objectively believed that the law in this circuit was

what the Fourth Circuit said it was; that is, a plaintiff could

not    prevail       on    an    excessive       force       claim    “absent      the    most

extraordinary circumstances,” if he had suffered only de minimis

injury.       Norman, 25 F.3d at 1263.                 Although Wilkins established

that    the       Fourth     Circuit       had       been    applying        the   incorrect

standard,      the    inquiry—for          qualified        immunity      purposes—is     not

whether the officer correctly interpreted the law as it would be

changed in later years, but rather, whether the conduct at issue

was reasonable based on the officer’s imputed knowledge of the

law    at   the     time.        Crum’s    reliance         on   Norman    satisfies      this

standard.

       Crum’s       alleged      conduct     was      no    more     egregious     than   the

conduct of other officers in a multitude of cases in which those

officers were found not to have used excessive force under the

Norman rule, including the Wilkins decision in our court.                                 See,

e.g., Riley, 115 F.3d at 1161 (inserting tip of his pen into

pre-trial detainee’s nose, threatening to rip nose open, and

slapping      him    with       “medium”    force);         Taylor,    155    F.3d   at   484

(shoving a small wooden object into pre-trial detainee’s nose,

cracking his tooth, hitting him in the back of his head, and

punching him in the ribs).                 The similarity of these cases to the

case at bar demonstrates that, under the law of our circuit

                                                23
prior to Wilkins, Crum’s conduct would have been settled by the

Norman analysis.

       Our decision in Wilkins provides a representative decision

that    supports    Crum’s      qualified        immunity      argument.      Over    two

years after the events at issue here, we affirmed the grant of

qualified immunity for failure to establish more than de minimis

injury where Wilkins alleged injury from a prison guard beating

based on “multiple physical injuries including ‘a bruised heel,

low back pain, increased blood pressure, as well as migraine

headaches and dizziness’” and “psychological injuries such as

anxiety,    depression,         and    panic     attacks.”        Wilkins,     2008     WL

1782372    at    *1.      Viewing      Hill’s     evidence      in   the    light    most

favorable to him, his claim of injury is no greater (and would

objectively appear less) than those found to be no more than de

minimis in Wilkins for qualified immunity purposes.

       Under    Norman,       the   key   inquiry    in     determining       whether   a

prisoner       stated    an     excessive        force    claim      is    whether    the

plaintiff’s      injuries       were      more    than    de    minimis.        We    may

determine whether Hill’s injuries were de minimis as a matter of

law.     See Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir.

1999)    (finding       that    the    plaintiff’s       claimed     injury    was    “so

insubstantial that it cannot as a matter of law support her

claim”).



                                            24
      Hill contends on appeal that his injuries were more than de

minimis because        he   “received      more    injuries     than    just    a     sore

thumb or a stretched leg.”           )Br. of Appellee at 18.)                  However,

Hill offered no proof that he suffered any injuries as a result

of the assault.         Nurse Meade, a registered nurse, who examined

Hill after the assault, found that Hill had “[n]o injuries,”

(J.A.    192)    and   documented    this     in    a    contemporaneous        report,

“Inmate    Injury      Assessment    and    Followup”       (J.A.      201).        Meade

testified that her report would have included notes regarding

his     dizziness,     feelings     of     pain,        inability      to     stand     or

understand had she noticed any problems, or if he had complained

of any injuries.            Hill’s medical records do not indicate any

complaints of injuries stemming from the assault.                      And when Hill

first filed his pro se lawsuit against eleven prison officials

at USP Lee alleging various deprivations of rights, he did not

name Crum as a defendant or claim any injuries arising out of

the November 1, 2007 assault in his complaint.                              Hill simply

cannot    rise    above     the   allegations       in    his     complaint     or     the

evidence tendered to the district court for resolution of the

Rule 50(b) motion.           While we must construe the evidence in the

light most favorable to Hill, we cannot construe that which does

not exist.       Hill’s injuries were clearly de minimis.

      Under Norman, however, a plaintiff with only de minimis

injuries    may    still    bring   an   excessive        force    claim     under     the

                                         25
Eighth Amendment when certain “extraordinary circumstances” are

present.     Such “extraordinary circumstances” are either that the

force used was “repugnant to the conscience of mankind” or the

pain   suffered      was       “such   that      it     can    properly      be    said    to

constitute more than de minimis injury.”                            Norman, 25 F.3d at

1263 n.4.

       The   types       of     actions     that        have    been     classified        as

“repugnant     to        the     conscience        of        mankind”     are      torture,

humiliation, or degradation.              See, e.g., Riley, 115 F.3d at 1168

n.4 (citing Rochin v. California, 342 U.S. 165 (1952) for the

proposition       that     forcibly       pumping       a     suspect’s      stomach       for

information       after       illegally     entering          his    house    shocks       the

conscience); Jordan v. Gardner, 986 F.2d 1521, 1523, 1526 (9th

Cir. 1993) (en banc) (prison policy of subjecting female inmates

to   random,   non-emergency           pat-downs        by    male   prison       guards   is

cruel and unusual punishment).                But see Jackson v. Morgan, 19 F.

App’x 97, 101 (4th Cir. 2001) (unpublished) (placing inmate in

isolation cell for three days wearing only underwear and in a

three-point restraint did not constitute force repugnant to the

conscience of mankind).

       District    courts       within    our    circuit        have    similarly      found

only egregious conduct “repugnant to the conscience of mankind.”

See, e.g., Davis v. Lester, 156 F. Supp. 2d 588, 594 (W.D. Va.

2001) (finding that forcing a prisoner to be “restrained for 48

                                            26
hours with all four of his limbs and his chest immobilized,

lying   on    his     back      in    his   own        urine    in    a   cold     cell”    to    be

repugnant to the conscience of mankind); Peoples v. S.C. Dep’t

of Corr., No. 8:07-1203-CMC-BHH, 2008 WL 4442583, at *4-10 (D.

S.C.    Sept.       25,     2008)        (plaintiffs           allegations         that    prison

officials     flooded        his     cell       with    unknown       “chemical      munition,”

after   which       he    was      not     allowed       to    seek       medical    attention,

shower, or clean his cell, rose to the level of alleging conduct

repugnant to the conscience of mankind); Acevedo v. Warner, No.

7:03CV00526, 2005 U.S. Dist. LEXIS 32332, *11-12, 15-*16 (W.D.

Va. Mar. 29, 2005) (finding that beating a restrained prisoner,

making racial slurs to him, and smearing feces and urine on his

face was repugnant to the conscience of mankind).

       On the other hand, breaking a prisoner’s finger by slamming

his hand in a mail slot, Hines, 142 F. App’x at 781, and hitting

a prisoner with twelve blasts of pepper spray while confined in

a cell, Jackson 19 F. App’x at 101, were not “repugnant to the

conscience of mankind.”                  Moreover, we have previously found in

favor    of   defendants             who    assaulted          a     restrained      inmate       in

circumstances similar to those alleged by Hill.                                    See Germain,

2000    WL    139255,        at      *2-3       (affirming         summary       judgment        for

defendants      who       sprayed        mace    at     and    struck       with    a     baton    a

prisoner who was restrained, locked in his cell, compliant, and

was not involved in the disturbance).                              We have not classified

                                                 27
mere brute force, therefore, as “repugnant to the conscience of

mankind.”   Hill has cited to no case, and we have found none,

where the injury pled or proved was “repugnant to the conscience

of mankind” in circumstances even remotely close to those of the

case at bar.

     Crum’s alleged conduct, which is undoubtedly reprehensible,

nevertheless     is    more     akin     to   brute          force,       rather     than

humiliation,     degradation,       or   torture        as    we     have    described

“extraordinary circumstances” in other cases.                      It is, therefore,

clear that his conduct does not rise to the level of conduct

“repugnant to the conscience of mankind.”                      In no sense do we

suggest   that    Crum’s      alleged    conduct    was        appropriate         for   a

correctional     officer,     but   it    fails    to    cross        the   very     high

threshold   for       extraordinary      circumstances             that     permit       an

excessive force claim to advance in the absence of more than de

minimis injury for purposes of a pre-Wilkins qualified immunity

analysis.

     Furthermore, Hill’s injuries do not suggest that they were

so painful that they constituted “more than de minimis injury,”

the second of Norman’s two extraordinary circumstances.                        25 F.3d

at 1263 n.4.      Nurse Meade found no injuries and documented this

in her report, and Hill did not complain of any injuries during

this examination.       In the videotape taken a few hours after the

assault, Hill shows no visible distress and does not appear to

                                         28
have any injuries.          Hill never pled more than de minimis injury

and   introduced       no   evidence   of   any    injury,           de    minimis   or

otherwise.

      Because     no   extraordinary   circumstances           are    applicable     to

Hill’s   injuries,      and   Hill   suffered     no    more    than       de   minimis

injury, he could not, at the time the assault took place, state

a claim upon which relief could be granted under the Eighth

Amendment.      Therefore, the right he seeks to avail himself of

was not clearly established in the Fourth Circuit at the time of

the   alleged     assault.        Consequently,         Crum    is        entitled   to

qualified immunity.



                                IV. Conclusion

      For   the    foregoing     reasons,   the        district       court’s    order

denying Crum’s Rule 50(b) motion is reversed and the case is

remanded to the district court for the entry of judgment in

favor of Crum on the basis of qualified immunity.



                                                          REVERSED AND REMANDED




                                       29
THACKER, Circuit Judge, dissenting:

           With all due respect to the majority, I must dissent.

Under prevailing Supreme Court precedent available at the time

of the assault in this case, it was clearly established that an

officer could not maliciously or sadistically impose harm on a

custodial,      handcuffed,    and    completely    non-resistant      inmate

without violating the inmate’s Eighth Amendment right to be free

from cruel and unusual punishment –– and any reasonable officer

would have known as much.

           As the district court correctly concluded, Appellant

Crum is not entitled to qualified immunity in as much as “[i]t

cannot credibly be claimed that [Appellant Crum] w[as] not on

notice   that    unnecessarily     inflicting   pain   on    [Hill]   violated

[Hill’s] constitutional rights.”         Hill v. O’Brien, No. 7:08-cv-

00283, 2011 WL 4566442, at *4 (W.D. Va. Sept. 30, 2011); see

also Hill v. O’Brien, No. 7:08-cv-00283, 2012 WL 517544, at *4

(W.D. Va. Feb. 16, 2012) (“It is apparent –– and cannot be

credibly denied –– that a reasonable officer in Crum’s position

in 2007 would have known that repeatedly punching a restrained

prisoner in the stomach, ribs, and head for a sustained period,

for no other reason but to punish him for a behavioral issue,

was   unlawful   in   light   of   pre-existing    law.”).      Therefore,   I

would affirm the ruling of the district court.
                                              I.

            This case involves the intersection of two judicial

doctrines: qualified immunity and the use of excessive force in

violation of the Eighth Amendment’s prohibition on cruel and

unusual punishment.

            Whether       Appellant          Crum     is     entitled          to    qualified

immunity    for    his    alleged       assault      on     inmate          Hill    requires   a

familiar two-pronged inquiry.                 That inquiry requires a court to

determine    (1)        “whether       the        facts     that        a     plaintiff      has

alleged . . .      or     shown    .    .     .     make    out     a       violation     of    a

constitutional right,” Pearson v. Callahan, 555 U.S. 223, 232

(2009) (internal citations omitted) (citing Saucier v. Katz, 533

U.S. 194, 201 (2001)); and (2) “whether the right at issue was

‘clearly    established’          at    the        time     of     defendant’s         alleged

misconduct,” id. (quoting Saucier, 533 U.S. at 201) (holding

that the sequence of the Saucier inquiry is not mandatory).

                                              A.

            Here, Appellant Crum has conceded that the first prong

of the qualified immunity analysis –– the alleged violation of a

constitutional      right     ––       is    satisfied.            Appellant’s         Br.     15

(“[T]he evidence would allow a reasonable jury to conclude that

he   had    violated       Hill’s           constitutional          rights.”).               More

specifically,      Crum’s    repeated          blows       allegedly         levied    against



                                              31
Hill for “a good solid two minutes,” J.A. 142, 1 while Hill was

restrained,            cooperative,       and     “attempt[ing]         to    hunch     over   [a]

desk,” id., in an effort to protect himself, even if they may

have caused only minor injuries, clearly constituted excessive

force in violation of his Eighth Amendment right.

                                                  B.

                  This    case     then    turns       on    the    second      prong    of    the

qualified         immunity       analysis:       whether      the      aforementioned      right

was clearly established.                   See Pearson, 555 U.S. at 232.                       When

available, we consider “decisions of the Supreme Court, this

court of appeals, and the highest court of the state in which

the    case        arose”     to     discern        whether        a    right    was     clearly

established.             Owens ex rel. Owens v. Lott, 372 F.3d 267, 279

(4th       Cir.    2004)     (internal          quotation     marks       omitted).       To    be

“clearly established,”

       [t]he contours of the right must be sufficiently clear
       that a reasonable official would understand that what
       he is doing violates that right.   This is not to say
       that an official action is protected by qualified
       immunity unless the very action in question has
       previously been held unlawful, but it is to say that
       in the light of pre-existing law the unlawfulness must
       be apparent.

Anderson          v.     Creighton,       483    U.S.       635,    640      (1987)    (internal

citations omitted).

       1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                                  32
               Thus, we must inquire whether on November 1, 2007, a

reasonable officer could have believed that repeatedly striking

a restrained, cooperative, hunched-over inmate, so long as only

de minimis injury resulted, “was lawful[] in light of clearly

established law and the information the officer[] possessed.”

Wilson    v.    Layne,   526    U.S.    603,       615    (1999).      Appellant   Crum

claims that he was entitled to assault Mr. Hill unabated for

over two minutes so long as any resulting injury was de minimis.

Indeed, at oral argument, Appellant Crum argued, in essence,

that there were no limits to excessive force as long as there

were no marks left on the victim, or in other words, “as long as

he didn’t hurt him, as long as he didn’t cause more than de

minimis injury.”         Oral Argument at 2:17, Hill v. Crum, (No. 12-

6705), available         at    http://www.ca4.uscourts.gov/OAaudiotop.htm.

Not so.     Under controlling Supreme Court precedent at the time –

– not to mention applying pure common sense –- no reasonable

officer could have believed such abuse was lawful.

                                             1.

                               Controlling Precedent

               On   November    1,   2007,        the    controlling    Supreme    Court

authority      for   excessive       force    cases       in   the   Eighth   Amendment

context was Hudson v. McMillian, 503 U.S. 1 (1992).                           One need

only read the first paragraph of Hudson to realize the right at

issue was clearly established:

                                             33
             This case requires us to decide whether the use
        of excessive physical force against a prisoner may
        constitute cruel and unusual punishment when the
        inmate does not suffer serious injury. We answer that
        question in the affirmative.

503   U.S.   at   4.   The    Supreme    Court     went   on   to   emphasize   as

follows:

      When prison officials maliciously and sadistically use
      force to cause harm, contemporary standards of decency
      always are violated.     This is true whether or not
      significant injury is evident.   Otherwise, the Eighth
      Amendment would permit any physical punishment, no
      matter how diabolic or inhuman, inflicting less than
      some arbitrary quantity of injury.

Id. at 9 (emphasis supplied) (citation omitted).

             At the time of the incident in this case, Hudson had

been controlling Supreme Court precedent for 15 years.                  In fact,

this was the controlling law even before Hudson.                      The Hudson

Court merely extended its prior holding in Whitley v. Albers,

475 U.S. 312 (1986) (regarding the legal standard for an Eighth

Amendment excessive force claim arising out of a prison riot),

to standard claims by inmates against prison officials for the

use of excessive force.        Hudson, 503 U.S. at 6–7.             Under Whitley

and     Hudson,    “‘the     unnecessary     and     wanton     infliction      of

pain . . . constitutes cruel and unusual punishment forbidden by

the Eighth Amendment.’”         Id. at 5 (quoting Whitley, 475 U.S. at

319).     The Court explained that “the core judicial inquiry” in

excessive force cases is not whether a certain quantum of injury

was sustained, but rather “whether force was applied in a good-

                                        34
faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.”                  Id. at 7; see also Wilkins v.

Gaddy, 559 U.S. 34, 36 (2010) (“In requiring what amounts to a

showing of significant injury in order to state an excessive

force   claim,    the    Fourth       Circuit      has    strayed   from    the   clear

holding of this Court in Hudson.” (emphasis supplied)).                           Thus,

although this circuit misinterpreted Hudson in Norman v. Taylor,

25 F.3d 1259 (4th Cir. 1994), the fact remains that Hudson and

Whitley   set    forth     the      long   standing       and   clearly    established

controlling precedent at the time of this incident.

                                            2.

                                     Use of Force

              The law was, and is, clear; the proper focus is on the

force used, not on the resulting injury.                    In determining whether

force is permissibly applied, the Supreme Court has held that

“the extent of injury suffered by an inmate is one factor” of

many that should be considered.                  Hudson, 503 U.S. at 7 (emphasis

supplied); see also Williams v. Benjamin, 77 F.3d 756, 762 (4th

Cir. 1996) (“The absence of serious injury is a relevant, but

not   dispositive,       additional        factor    to    be   considered     in   the

subjective      analysis      [of    an    Eighth    Amendment      excessive     force

claim].”).      Other factors include “[1] the need for application

of force, [2] the relationship between that need and the amount

of    force   used,     [3]   the     threat      reasonably     perceived     by   the

                                            35
responsible officials, and [4] any efforts made to temper the

severity    of   a       forceful     response.”              Hudson,    503      U.S.     at   7

(internal quotation marks omitted).

            Even if we assume Hill’s injuries were minor –– which

he does not concede –– analysis of the other factors make clear

Crum’s alleged use of force could be deemed excessive.                                  Although

there had been a prior disturbance in Hill’s cell that resulted

in a broken sprinkler, there was no reason to exercise force to

restore order –– order had already been restored.                                 Indeed, the

source of the disturbance –- Hill’s cellmate –- had been removed

from the     cell    at    the      time   of        the    incident    at   issue.         Hill

remained restrained, compliant, and cooperative when the prison

guards arrived on the scene.                     See J.A. 141–42 (“Officer Crum

came over to the cell and requested that we submit to hand

restraints.          I    submitted        to        hand    restraints.           He     placed

handcuffs on us. . . .                 [Officer Crum] began to tell me I

couldn’t take my legal work out of the cell which was soaked

with water.      During that time I put my legal work down, I put

the legal work down.”).               Appellant Crum does not refute Hill’s

testimony.       A lone cooperative inmate, handcuffed and hunched

over a desk could not pose a reasonable threat to a prison

officer    sufficient          to   justify      the        use   of   force.       Moreover,

Appellant     Crum       did    not    temper          the    severity       of    the     force

employed, but, rather, allegedly continued beating Hill for a

                                                36
total      of      two     minutes.            These     factors        indicate   that       Crum

exercised force, not in a good-faith effort to restore order,

but, rather, maliciously and sadistically simply to cause harm. 2

                                                    3.

                                        Norman v. Taylor

                Critically,        as     the       district     court    correctly   pointed

out,    the     facts      of     Hudson       ––    where   a     restrained,     cooperative

inmate in the course of being transported to another cell, was

physically beaten by prison officials –- are far more analogous

to the present case than the facts of Norman.                              Indeed, Norman is

distinguishable from this case.

                Unlike      the    present          case,    the    inmate    in   Norman      had

himself created a disturbance by yelling to other inmates which

disrupted prison security and justified at least some response.

Norman,       25    F.3d    at     1263    n.5       (“On    this    understanding       of    the

incident,          there    can    be     no    question         that   the   district    court

properly held that the force used was justified in a good faith

effort to maintain or restore discipline.” (internal quotation

marks omitted)).                Here, as the majority notes, it was Hill’s

       2
       According to Hill, Crum threatened him saying “break
another sprinkler, I’ll break your neck.”      J.A. 52.   Hill’s
testimony further revealed that Crum’s use of force may have had
another malevolent purpose –- retribution.   Hill testified that
in the month leading up to the incident at issue, he filed a
grievance with the prison against Officer Crum. Id. at 145 (“I
had Officer Crum written up previously.”).



                                                    37
cellmate, not Hill, who had broken the sprinkler and created the

initial disturbance.             Ante at 3–4.             And, in any event, the

disturbance had been quelled at the time of this incident. 3                         As a

result, a reasonable officer could not have relied on Norman to

justify the sustained beating of a restrained and cooperative

inmate.

                                               II.

               Ultimately,       whatever           erroneous     interpretive       gloss

Norman      placed    on    Hudson,      see    Wilkins     v.   Gaddy,    559    U.S.    34

(2010) (abrogating Norman), on November 1, 2007, it would have

been       readily   apparent       to   a     reasonable      officer    that    where    a

disturbance      had       already   been      abated,    he     could   not   assault     a

restrained, compliant, and cooperative inmate for “a good solid

two minutes,” J.A. 142, punching and elbowing him repeatedly in

the    abdomen       and    head,    without         applying    excessive       force    in

violation of the inmate’s Eighth Amendment right to be free from


       3
       It should come as no surprise that this distinction ––
that is, the distinction between instances where force is
applied to restore order and instances where it is applied
without justification –– is of significance.        In fact, we
recognized   this  exact   distinction  and   its  constitutional
consequences in Stanley v. Hejirika, 134 F.3d 629 (4th Cir.
1998).   In Stanley, we found that “bruises, swelling, and a
loosened tooth sustained in a fracas that occurred while prison
guards were trying to quell a disturbance are constitutionally
insignificant and distinct from a loosened tooth and a cracked
dental plate sustained in the context of punishment deliberately
inflicted by guards because of a verbal argument.” Id. at 638.



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cruel   and   unusual   punishment.    Accordingly,   I   would   hold

Appellant Crum is not entitled to qualified immunity, and affirm

the decision of the district court.




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