                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2184
                        ___________________________

                                   Ronnie Jackson

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Jeff Gutzmer

                      lllllllllllllllllllll Defendant - Appellant

                                   ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                             Submitted: March 9, 2017
                              Filed: August 10, 2017
                                  ____________

Before LOKEN, MURPHY, and BENTON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       After a disturbance resulted in Minnesota inmate Ronnie Jackson spending
three-and-one-half hours on a restraint board, Jackson filed this 42 U.S.C. § 1983
action against correctional officers and medical staff of the Oak Park Heights
maximum security prison. Defendants moved for summary judgment, and the district
court dismissed all claims except an Eighth Amendment excessive force claim against
Lieutenant Jeff Gutzmer, who authorized use of the restraint board. Gutzmer appeals
the denial of summary judgment based on qualified immunity. Reviewing that issue
de novo and the facts in the light most favorable to Jackson, we reverse. See Burns
v. Eaton, 752 F.3d 1136, 1138 (8th Cir. 2014).

                                           I.

       A. Convicted of arson, Jackson was admitted to the Minnesota Correctional
Facility in St. Cloud in November 2012. An initial psychiatric assessment reflected
his self-reported history of 28 suicide attempts, suicidal thoughts, hearing voices to
harm himself and others, cutting himself, depression, and anxiety. The assessment
also related violent episodes including stabbing his school principal with scissors and
striking his fiancé with a bottle. The examining doctor diagnosed Jackson with
depression, borderline personality disorder with possible dissociative episodes, and
alcohol dependency.

       During Jackson’s first week at the St. Cloud facility, he violated multiple rules,
including threatening others, possessing a weapon, and assaulting correctional staff.
The weapon possession violation was a major infraction. Jackson also reported that
voices were telling him to slit his cellmate’s throat. The Minnesota Department of
Corrections (DOC) transferred Jackson to the Oak Park Heights maximum security
facility, placed him on disciplinary segregation status, and assigned him to the
Administrative Control Unit (ACU). Designed to protect inmates from themselves
and others and to maintain orderly prison operations, the ACU is the most secure
prison living unit in Minnesota. ACU inmates are confined to their cells for twenty-
three hours per day and allowed only limited personal property. To receive medical
attention, an ACU inmate can submit a written “kite” for a medical visit; for
emergency life-threatening situations, an inmate can press a duress button in his cell.




                                          -2-
       While at Oak Park Heights, Jackson was sent repeatedly to ACU or to Complex
5, a segregation unit for less threatening inmates or those with shorter segregation
sentences. He was convicted of more than twenty rule violations, including
assaulting staff, disorderly conduct, threatening behavior, disobeying direct orders,
abuse or harassment, and destruction of prison property. In one incident, Jackson
refused to return to his cell, kicked a responding officer in the thigh, and threatened
that “whoever put hands on me is going to die.”

        In a November 2013 incident, after scheduling a medical visit for neck pain,
Jackson told a correctional officer that he had swallowed a razor blade, triggering an
Incident Command System (ICS) call for a self-injurious inmate. A doctor responded
and evaluated Jackson’s complaint of chest, arm, and neck pain. He was then placed
in a Complex 5 cell. A few hours later, he covered his cell camera with plastic lining
from his mattress, refused directives to come to the door to be placed in restraints, and
stated he was going to “get to ACU by doing whatever it takes.” The next day, while
staff removed the mattress, Jackson spat in the eye of a correctional officer. For these
violations, Jackson was placed in the ACU for 540 days of segregation and given 180
days of extended incarceration. Jackson resided in the ACU until April 2014, when
ACU inmates were moved to Complex 5 because of ACU construction.

       B. The events giving rise to this lawsuit occurred on May 13, 2014. We relate
facts stated in Jackson’s Declaration In Opposition to Defendants’ Motion For
Summary Judgment. Around 7:20 a.m. that morning, Jackson declared, he informed
a non-defendant correctional officer he was not feeling well, but it was not serious
enough for medical attention. By noon, he was experiencing severe chest pains,
nausea, shortness of breath, and vomiting, side effects he attributed to a depression
medication, Effexor. Over the next hour and a half, Jackson tried to get medical
attention by notifying a nurse and a correctional officer and by pushing his emergency
duress button at three different times. At 1:38 p.m., thinking his medical situation



                                          -3-
was “dire,” Jackson grabbed a “grease container” in his cell and began to knock on
the door to alert staff of his medical needs. Then, Jackson declared:

             For several minutes I was knocking on my door with the grease
      container, [and] at approximately 1:40 p.m. my neighbors . . . began
      asking me what was going on and why I was knocking on my door. My
      neighbors (I believe) had been hearing me ask for medical assistance.
      I explain to them the situation and tell them I need ‘help’ and they began
      hitting their doors trying to get the attention of the staff.

             For approximately 5 minutes staff completely ignore the noise . . .
      [until defendant Sergeant Donn] Weber finally heads towards [my cell]
      and all inmates stop hitting their doors. . . . Weber walks directly to my
      door, I attempt to stand and speak with him but my chest contracts
      painfully hard and I cry out in pain, and in my weakened state, slide
      down the inside of my door . . . . I see [Sergeant] Weber . . . activating
      an ICS response . . . for a self-injurious inmate. I was not hurting
      myself.1

       Lieutenant Gutzmer, responsible for supervising the ACU until 3:00 p.m. that
day, responded to Weber’s ICS call for a self-injurious inmate. Though it is disputed
whether Gutzmer witnessed Jackson kicking and punching the cell door after
Gutzmer arrived, it is undisputed that Sgt. Weber told Gutzmer that Jackson had been


      1
        Sergeant Weber’s contemporaneous incident report partially contradicted
Jackson’s Declaration. According to Sergeant Weber, he “could see that inmate
Jackson . . . was in his cell, pounding/kicking his door and that he was the source of
the disturbance. The door of [Jackson’s cell] was shaking and rattling and inmate
Jackson was out of control, screaming and yelling incoherently, as he punched and/or
kicked the cell door.” However, after activating ICS and attempting to calm Jackson,
Sergeant Weber concluded that “Inmate Jackson was NOT ‘out of control’ but rather
appeared to be in total control of his actions and emotions. Inmate Jackson fully
admitted that he was only causing the disturbance in an attempt to manipulate health
services staff into visiting him at his cell.”

                                         -4-
kicking and punching his cell door and ignored directives to stop. In Gutzmer’s
experience, he had seen inmates break their wrist, feet, or hands by kicking or
punching a cell door. Gutzmer averred that he feared Jackson may continue to
engage in self-injurious behavior if not restrained. So Gutzmer “decided to err on the
side of safety” and authorized the use of the restraint board.

       C. After Gutzmer decided Jackson should be placed on the restraint board, the
officers complied with DOC policies for “pinion restraints.” Jackson was cuffed,
placed in leg restraints, and escorted by multiple correctional officers to a table
outside his cell, where he was seen by two nurses. Jackson complained to the nurses
of chest pains. The nurses determined that his vital signs, blood pressure, respiration,
and pulse were normal, and his skin was warm and dry; he could talk normally and
did not appear to be in distress or suffering from any medical need requiring
immediate treatment or attention. The nurses medically cleared Jackson to be placed
on the restraint board. Consistent with policy, Jackson’s extraction from his cell and
placement on the restraint board were videotaped. The handcuffed and shackled
Jackson appears subdued and complies with officer instructions. The video confirms
the prior medical clearance and shows him being safely placed face down on the
restraint board at approximately 2:00 p.m., with a towel under his head and restraint
straps across his legs, back, and head. A nurse made sure the restraints were not too
tight, and an officer informed Jackson that he may request to use a bathroom “in a
manner that maintains the safety of the staff and the offender.”

       Jackson was taken to a different cell while on the restraint board. A mental
health professional evaluated him, officers checked on him every fifteen minutes
using a camera in the cell, and an officer and a nurse checked on him in person every
thirty minutes to examine his blood circulation and to determine whether he would
comply with staff directives and could be unrestrained. Jackson repeatedly yelled and
removed his head restraint. After a non-defendant correctional officer told Jackson
he could not use the bathroom, Jackson urinated on himself at approximately 4:25

                                          -5-
p.m. Gutzmer’s shift ended at 3:00 p.m., and Gutzmer did not see Jackson after he
was placed on the restraint board. Lieutenant Jeffrey White, Oak Park Heights Watch
Commander from 2:30 p.m. to 10:30 p.m., received reports that Jackson had
demonstrated he would cooperate with staff directives. Lt. White authorized
Jackson’s removal from the board at 5:25 p.m.

                                          II.

       Paragraph 62 of Jackson’s lengthy pro se complaint alleged that Lt. Gutzmer’s
actions “in authorizing the use of force and pinion restraints without need or
provocation were done maliciously and sadistically and . . . constituted . . . cruel and
unusual punishment in violation of” the Eighth Amendment. “An officer may be held
liable only for his or her own use of excessive force.” Smith v. City of Minneapolis,
754 F.3d 541, 547-48 (8th Cir. 2014) (quotation omitted). As Jackson does not allege
that the ICS officers used excessive force in removing him from his cell to the table
where the nurses examined him, the only issue on appeal is whether Lt. Gutzmer used
or authorized the use of excessive force in placing Jackson on the restraint board.

      “After incarceration, only the unnecessary and wanton infliction of pain
constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”
Whitley v. Albers, 475 U.S. 312, 319 (1986) (quotation omitted). What constitutes
the “unnecessary and wanton infliction of pain” varies based on the alleged
constitutional violation. “[W]henever prison officials stand accused of using
excessive physical force in violation of the Cruel and Unusual Punishment Clause,
the core judicial inquiry is that set out in Whitley: whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); see Wilkins v. Gaddy,
559 U.S. 34, 37 (2010). This inquiry turns on “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,” from which “inferences may be drawn

                                          -6-
as to whether the use of force could plausibly have been thought necessary, or instead
evinced such wantonness with respect to the unjustified infliction of harm as is
tantamount to a knowing willingness that it occur.” Whitley, 475 U.S. at 321. The
word “sadistically” is not surplusage; “‘maliciously’ and ‘sadistically’ have different
meanings, and the two together establish a higher level of intent than would either
alone.” Howard v. Barnett, 21 F.3d 868, 872 (8th Cir. 1994).

       This is a highly deferential standard. “It does not insulate from review actions
taken in bad faith and for no legitimate purpose, but it requires that neither judge nor
jury freely substitute their judgment for that of officials who have made a considered
choice.” Whitley, 475 U.S. at 322. “[P]rison administrators should be accorded
wide-ranging deference in the adoption and execution of policies and practices that
in their judgment are needed to preserve internal order and discipline and to maintain
institutional security.” Hudson, 503 U.S. at 6 (quotation and alteration omitted).
Evidence “that prison officials arguably erred in judgment” in deciding to use even
deadly force “falls far short of a showing that there was no plausible basis for [their]
belief that this degree of force was necessary.” Whitley, 475 U.S. at 323. If the
evidence shows only “a mere dispute over the reasonableness of a particular use of
force or the existence of arguably superior alternatives . . . the case should not go to
the jury.” Id. at 322.

       This is an interlocutory appeal from the denial of qualified immunity, a
doctrine that “shields a government official from liability unless his conduct violates
‘clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Burns, 752 F.3d at 1139, quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Qualified immunity protects “all but the plainly incompetent
or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). Because it protects officials from the burden of defending insubstantial
claims, as well as from damage liability, the Supreme Court has “stressed the



                                          -7-
importance of resolving immunity questions at the earliest possible stage in
litigation.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quotation omitted).

       The pretrial denial of qualified immunity is an appealable final order to the
extent it turns on an issue of law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
We have no jurisdiction to review a district court’s interlocutory summary judgment
order that “determines only a question of ‘evidence sufficiency,’ i.e., which facts a
party may, or may not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304, 313
(1995). Jackson argues we lack jurisdiction over this appeal for two reasons: first,
because there is a genuine fact dispute whether Jackson was placed on the restraint
board because he was self-injurious, as Weber and Gutzmer claim, or “as wanton
punishment for calling attention to his medical condition,” as Jackson claims; and
second, because issues “related to Gutzmer’s intent preclude interlocutory review.”

       The second reason requires only brief discussion because it is contrary to
controlling authority. In Crawford-El v. Britton, 523 U.S. 574, 588-89 (1998), the
Supreme Court acknowledged the inherent difficulty of applying qualified immunity,
a defense in which “the defendant’s subjective intent is simply irrelevant,” to claims
in which the defendant’s improper motive is “an essential component of the plaintiff’s
affirmative case.” Though the Supreme Court reversed the circuit court for imposing
on the plaintiff a heightened burden of proof to avoid qualified immunity, the Court
firmly rejected the notion that summary judgment based on qualified immunity may
not be granted when defendant’s intent is at issue. See id. at 600 (“summary
judgment serves as the ultimate screen to weed out truly insubstantial lawsuits prior
to trial”), 604-05 (Rehnquist, C.J., dissenting), 612 (Scalia, J., dissenting). As
relevant here, the majority held that a plaintiff opposing a properly supported
summary judgment motion based on qualified immunity “must identify affirmative
evidence from which a jury could find that the plaintiff has carried his or her burden
of proving the pertinent motive.” Id. at 600. We applied that standard in affirming
the grant of qualified immunity to a correctional officer accused of using excessive

                                         -8-
force in violation of the Eighth Amendment on an inmate who was pepper-sprayed
when he refused to return to his cell after showering. Burns, 752 F.3d at 1139. We
have jurisdiction to review that issue on this appeal.

       Jackson’s first reason requires more discussion. The district court denied
qualified immunity because Jackson’s claim that he was not kicking or punching his
cell door would permit a fact-finder to find that Gutzmer used the restraint board “for
punishment, not to prevent self-harm despite what prison officials say,” and “Eighth
Circuit precedent makes clear that using a restraint board for punishment as opposed
to incapacitation may constitute an Eighth Amendment violation,” citing Walker v.
Bowersox, 526 F.3d 1186, 1188 (8th Cir. 2008). We conclude this reasoning is
wrong as a matter of law.

       Qualified immunity is an affirmative defense governed by an objective standard
in which “the defendant’s subjective intent is simply irrelevant.” Crawford-El, 523
U.S. at 588. “The immunity standard in Harlow itself eliminates all motive-based
claims in which the official’s conduct did not violate clearly established law.” Id. at
592. Thus, just as an arresting officer with probable cause to arrest for a particular
violation is entitled to qualified immunity even if that was not his motive at the time
of arrest, see Peterson v. Kopp, 754 F.3d 594, 599-600 (8th Cir. 2014), Gutzmer is
entitled to qualified immunity if the totality of the circumstances justified use of the
restraint board even if Gutzmer erred in believing Jackson was self-injurious when
placed on the board.

       In addition, the district court erred in construing Walker as equating
“punishment” of an inmate with an excessive use of force. “The punishment of
incarcerated prisoners . . . effectuates prison management and prisoner rehabilitative
goals. . . . Discipline by prison officials in response to a wide range of misconduct
falls within the expected perimeters of the sentence imposed by a court of law.”



                                          -9-
Sandin v. Conner, 515 U.S. 472, 485 (1995).2 A typical punishment for inmate
misconduct is punitive segregation, as in Sandin. But here, because of Jackson’s
prior misconduct, he was already in the most segregated living unit in the Minnesota
prison system. If Jackson’s additional misconduct on May 13, 2014 warranted
additional discipline, no Eighth Circuit case, and certainly no Supreme Court case,
has ever held that such “punishment” violates the Eighth Amendment.

       Turning to the merits of the alleged Eighth Amendment violation, the issue of
intent that is an element of Jackson’s claim is whether undisputed facts establish that
force was applied “in a good-faith effort to maintain or restore discipline,” or whether
Lt. Gutzmer applied force “maliciously and sadistically to cause harm.” Hudson, 503
U.S. at 6-7.3 We have jurisdiction to review whether, viewing the facts in the
summary judgment record most favorably to Jackson, he “identif[ied] affirmative
evidence from which a jury could find that [he] carried his . . . burden of proving” that

      2
       By contrast, “pretrial detainees . . . cannot be punished at all, much less
‘maliciously and sadistically.’” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475
(2015).
      3
        In Key v. McKinney, 176 F.3d 1083, 1086 (8th Cir. 1999), we concluded there
was no Eighth Amendment violation when prison officials restrained an inmate with
handcuffs connected to a leg chain for twenty-four hours after the inmate threw water
on a correctional officer during a work detail. Though Key involved inmate
“restraints,” we analyzed the Eighth Amendment issue under the deliberate
indifference standard that applies to conditions of confinement cases, rather than the
malicious and sadistic standard Whitley applied to excessive force cases. See also
Camp v. Brennan, 54 F. App’x 78, 81 (3d Cir. 2002) (analyzing Eighth Amendment
claim of improper use of a four-point restraint as a conditions of confinement claim).
Most excessive force cases involve beatings, physical altercations, or use of force
such as Tasers. When the use of passive restraints is challenged, careful analysis of
the factual context may be needed to determine the appropriate substantive standard.
That is not in question here, so we will not further address the issue.



                                          -10-
Gutzmer’s actions reflected a malicious and sadistic motive. Burns, 752 F.3d at 1139,
quoting Crawford-El, 523 U.S. at 600; see Jeffers v. Gomez, 267 F.3d 895, 906-07
(9th Cir. 2001). This issue turns on consideration of far more than whether use of the
restraint board was unreasonable because Jackson was not self-injurious. See
Whitley, 475 U.S. at 321.

       To review again the undisputed facts, Sgt. Weber went to Jackson’s cell in
response to loud banging and called the ICS team because Jackson may be self-
injurious. Before the ICS team and two nurses arrived, Weber had concluded that
Jackson was not out of control, he was simply raising a ruckus to get medical
attention (which Jackson’s Declaration admits). The ICS officers came to the cell and
laboriously restrained Jackson so he could be safely taken from his cell to the table
where two nurses, summoned from their regular duties, examined Jackson and
concluded there was no need for immediate medical attention. Jackson admitted
causing a disturbance so that he could bypass prison rules for obtaining medical
attention, misconduct warranting discipline. He violated rules for obtaining medical
assistance, falsely claimed a medical emergency, and seriously disrupted ACU
operations. Thus, “[t]his is not a case where a complete absence of penological
purpose raised the reasonable inference that [Lt. Gutzmer] acted maliciously in an
effort to cause harm.” Burns, 752 F.3d at 1140.4

       Discipline was warranted after the nurses reported that Jackson had contrived
a medical emergency and could safely be placed on the restraint board. Lt. Gutzmer
placed Jackson on a restraint board for up to four hours, complying with DOC
policies governing its use by videotaping Jackson’s placement, obtaining prior
medical clearance, and having a nurse make sure his placement on the board was not

      4
       Jackson in his Declaration stated that, before Lt. Gutzmer was involved, a
correctional officer responding to the third time Jackson improperly pushed his duress
button said, “if you don’t stop pushing the button and harassing [correctional officers]
on rounds with fake requests for help you’ll be placed on the [restraint] board.”

                                         -11-
injurious or painful. This short-term discipline to induce compliance, while
uncomfortable and unpleasant, was unlikely to be painful or to cause physical or
psychological harm to an inmate already in punitive segregation. The restraint
conditions in Walker were far less justified and far more painful and likely to harm
the inmate. See 526 F.3d at 1188. In these circumstances, we must defer to Lt.
Gutzmer’s judgment that employing this restraint in accordance with the safety
precautions required by prison policy was “needed to preserve internal order and
discipline and to maintain institutional security.” Hudson, 503 U.S. at 6. It is not
constitutionally significant that the DOC policy generally instructs officials not to use
force or restraints as a form of punishment. See, e.g., Falls v. Nesbitt, 966 F.2d 375,
379-80 (8th Cir. 1992).5

       As in Burns, we conclude that Jackson presented no evidence whatsoever that
Gutzmer’s actions “evinced such wantonness with respect to the unjustified infliction
of harm as is tantamount to a knowing willingness that it occur.” Whitley, 475 U.S.
at 321. Jackson argues that, when he was placed on the restraint board, there was no
longer a risk of self-injurious behavior, so the evidence demonstrates that Gutzmer
placed Jackson on the restraint board “as punishment for seeking medical attention,”
thereby violating the Eighth Amendment. But punishing an inmate “to preserve
internal order and discipline and to maintain institutional security” does not violate
the Eighth Amendment, Hudson, 503 U.S. at 6, unless the punishment or force used
is “repugnant to the conscience of mankind,” id. at 10 (quotation omitted), like the
“degrading and dangerous” hitching post restraint at issue in Hope v. Pelzer, 536 U.S.
730, 745 (2002). Nor is there evidence of prior contacts or relations between Jackson
and Gutzmer that would be specific evidence of a malicious motive to harm. See
Burns, 752 F.3d at 1140.

      5
        We also conclude that “the extent of the threat to the safety of [Jackson], as
reasonably perceived by [Lt. Gutzmer] on the basis of facts known to” him, suggested
that “the use of force could plausibly have been thought necessary” to stop Jackson
before he injured himself. Whitley, 475 U.S. at 321.

                                          -12-
       For these reasons, we conclude that we have jurisdiction over this appeal and
the denial of qualified immunity to Lt. Gutzmer must be reversed because the record
fails to establish the alleged Eighth Amendment excessive force violation. The
Memorandum and Order of the district court dated March 31, 2016 is reversed in part,
and the case is remanded with directions to enter summary judgment dismissing the
excessive force claim against Lt. Jeff Gutzmer.
                         ______________________________




                                       -13-
